author: MOURSUND, J.

text:
    PALACIOS et al. v. CORBETT et al.

    (No. 5378.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 6, 1915.
    Rehearing Denied Jan. 27, 1915.)
    1. Common Law (§ 12) — Adoption — “Common Law on England” — What Constitutes.
    The “common law of England,” referred to in Rev. St. art. 5492, and which was declared adopted by the state of Texas, means the common law as declared by the courts of the different states of the United States.
    [Ed. Note. — For other cases, see' Common Law, Cent. Dig. § 10; Dec. Dig. § 12.

    E^or other definitions, see Words and Phrases, First and Second Series, Common Law.]
    2. Recoeds (§ 14) — Common Law.
    In the absence of statutory provisions relating to the right of citizens to inspect county records, the matter is governed by the common law.
    [Ed. Note. — For other cases, see Records, Cent. Dig. §§ 13-18; Dec. Dig. § 14.]

      3. Mandamus (§ 82) — Records (§ 14) — Inspection ot County Records.
    A citizen and taxpayer of a county, who has good cause to believe there has been a misapplication of county funds, is entitled to a writ of mandamus to compel county officers to allow inspection of their books to discover the misapplication, if any, though there is no absolute right of inspection given by statute; this being particularly true where the citizen is interested in the inspection because it may result in a decrease of his assessment.
    [Ed. Note. — For other cases, see Mandamus, Cent. Dig. §§ 139, 177-179; Dec. Dig. § 82; Records, Cent. Dig. §§ 13-18; Dec. Dig. § 14.]
    4. Reoobds (§ 14) — County Records —Inspection.
    That Rev. St. art. 1402, declares that the finance ledger shall be kept by the county clerk and shall be at all times open to inspection, and that articles 6030, 6041, and 6042 provide for the removal' of county officers for certain misconduct, does not, even in view of article 1160, by which stockholders of private corporations are given the right to examine books and records, deprive a citizen of his common-law right to inspect county records to determine whether there was a misapplication of funds.
    [Ed. Note. — Eor other cases, see Records, Cent. Dig. §§ 13-18; Dec. Dig. § 14.]
    5. Récords (§ 14) — Inspection — Mandamus —Defenses.
    Where it appeared that county officers were in arrears for several years, the fact that the county commissioners were having an audit for one of the years is no ground for denying citizens mandamus to enable them to obtain inspection of county records to ascertain delinquencies of the previous years.
    [Ed. Note. — For other cases, see Records, Cent. Dig. §§ 13-18; Dec. Dig. § 14.]
    6. Records (§ 14) —County Records —Inspection — Right of.
    Where plaintiffs expected that an inspection of county records would disclose that their assessments were too high, they had a personal interest entitling them to inspect the county records; hence mandamus could not be denied because of plaintiff’s want of interest.
    [Ed. Note. — For other cases, see Records, Cent. Dig. §§ 13-18; Dec. Dig. § 14.]
    7. Mandamus (§ 82) — County Records — Inspection — Right of.
    There is a presumption that the county attorney will perform the duty imposed by Rev. St. art. 366, and sue for money due the county; hence, to entitle taxpayers to mandamus to obtain inspection of county records to ascertain whether there was money due the county, it need not be shown that the county attorney had agreed to institute suit for any sums which might be found owing.
    [Ed. Note. — B’or other cases, see Mandamus, Cent. Dig. §§ 139, 177-179; Dec. Dig. § 82.]
    Appeal from District Court, Duval County; W. B. Hopkins, Judge.
    Suit by R. H. Corbett and others against J. V. Palacios, as. County Clerk, and others. From a judgment granting plaintiffs a writ of mandamus, defendants appeal.
    Affirmed.
    Hicks, Hicks & Teagarden and Chas. M. Dickson, all of San Antonio, for appellants. G. C. Robinson and Dougherty & Dougherty, all of Beeville, for appellees.

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

       Writ of error pending in Supreme Court.

   MOURSUND, J.

R. H. Corbett and 17 other private citizens of Duval county sued J. Y. Palacios, county clerk of said county, the county treasurer, the tax collector, the county judge, the county commissioners, and the Mercantile Bank, the county depository. We take from appellants’ brief the following statement of the pleadings: any way interfering with the inspection and audit of the public records of the county of whatever nature.

“It is alleged in the petition, which was filed in the district court of said county on Blay 22, 1914, that plaintiffs are taxpaying citizens of Duval county, and that on or about January 30, 1914, they had employed competent auditors who were engaged in an audit of such records, books, and vouchers in order to determine the financial condition, of said county for the purpose of determining whether there were any moneys due said county by any of the officers who had collected moneys belonging to the county, and whether any of the moneys of the county had been illegally retained or illegally disbursed by any of the officers charged with the disbursing of the same, and that, while such auditors were engaged in the work of auditing the said books and accounts, the commissioners’ court passed an order directing the other defendant county officers to refuse to allow the plaintiffs and their auditors to further inspect such records, and that the defendants did refuse and still refuse to allow the plaintiffs and their auditors to inspect any of the public records, books, and accounts of the county of which they are custodians. It was also alleged that the plaintiffs were not prompted by motives of idle curiosity in seeking to inspect and audit said records, but desired to make extracts from the same and to make copies thereof for the purpose of a complete audit of the affairs of the county, for the reason that plaintiffs have a well-grounded belief that the finances of the county have not been faithfully administered, and that there are large sums of money due the county of Duval, and that they desire to ascertain the amounts thereof in order that the same may be recovered for Duval county. Plaintiffs then set out in detail certain alleged irregularities, collections, payments, and intermingling of various funds in order to show the necessity for such audit, and also pleaded that their auditors, in making such inspection and audit of the records, were not in any way interfering with the orderly conduct of the affairs of the defendants in their offices, and were inspecting the records during the office hours of defendants, and that it was not their intention or desire to interfere with any of the defendants in the orderly conduct of their official affairs, nor to inspect such records at any other than reasonable office hours. It was further alleged that the members of the commissioners’ court ‘have pretended that said court is auditing or preparing to have an audit made of the finances of the county; and plaintiffs allege that, if said court shall have any audit made of the finances of said county, said audit will not be made for the purpose of determining whether said defendants otve the county any moneys, but for the purpose of “whitewashing” the said defendants and shield them from any suit for any deficit that a competent audit of said county’s finances might disclose.’ It was further alleged that, if a deficit was found, the court would take no action to collect the same, and that the ordinary legal remedies were inadequate to afford the relief desired, and that they feared that the commissioners’ court would fine for contempt any county officer who permitted the records under his control to be inspected by said auditors; and plaintiffs prayed for a mandamus commanding each of the defendants to permit plaintiffs or their auditors to inspect and audit all county records under their control and to get such extracts, copies, and data therefrom as they might desire, and also prayed for an injunction against the county judge and commissioners’ court, restraining them from in
“Each of the defendants filed separate answers to the petition, all of which were, however, practically the same. The defendant Pa-lacios pleaded: (a) In abatement that the plaintiffs had no right to institute suit for or on behalf of Duval county to recover any amount which might be due the county, and that that right was confided alone in the commissioners’ court, and that plaintiffs, as private citizens, had no right to institute any such suit, and therefore the suit to permit them or their auditors to audit the accounts should be abated; (b) misjoinder of parties plaintiff because said petition did not disclose facts authorizing the bringing- of a joint action by all the plaintiffs against this defendant; (c) a misjoinder of parties defendant because the petition showed no such common interest among defendants as would authorize the plaintiffs to prosecute a suit against defendants jointly; (d) general demurrer; (e) special exception to all mattgrs in the petition relating to duties, responsibilities, and negligence or failure of other county officials than himself, and he asked that they be stricken out. And specially answering, defendant Palacios denied that he had refused to permit the plaintiffs to inspect any public records of which he was custodian, and denied that the county commissioners’ court had passed any order directing the defendant to refuse to allow plaintiffs to inspect the records of which he was custodian, or that he had combined with the other defendants to use secretive methods in the administration of the financial affairs of Duval county, in order to render it difficult for plaintiffs to ascertain the facts in regard to disbursing the funds of the county or to deter the taxpayers from inquiring into the same, and alleged that all records under his control were then and had ever been subject to the inspection of any citizen of Duval county, and that he had never refused any of the plaintiffs the right to inspect the same at reasonable times during office hours, and that he was not in combination with any of the defendants to prevent any citizen of Duval county or plaintiffs from inspecting such records, and also specially that ‘at this time all the books in his custody, relating to the finances of Duval county, are being audited by a competent accountant appointed by the commissioners’ court of said county, and the same are in daily use by said auditor for the purpose of said audit and examination.’
“All the other defendants joined in the pleas of abatement and misjoinder and general and special exceptions, and filed practically the same answer as defendant Palacios, and the defendants the commissioners’ court, in addition to such pleadings, alleged in their answer that many of the matters alleged in said petition were pleaded for no other object than discrediting the defendants’ official acts, and they denied making any unlawful transfer of the funds or unlawful levy of taxes, or that they had combined with the other defendants to disburse funds unlawfully or to use secretive methods in administering the affairs of the county, and especially pleaded that they passed no order directing the other defendants ‘to refuse to allow plaintiffs to inspect the records of Duval county, showing the financial condition thereof,’ and that, as commissioners, they were charged with the duty of looking after the financial affairs of the county and the official acts of the other defendants, and that ‘in pursuance thereof, and before the filing of this suit by the plaintiffs, they had employed a competent accountant to audit the financial records of the- county, including all the books, reports, and documents kept or required to be kept by every county officer and the county depository, and that said accountant is now engaged in an audit of said books and records, and the same are in daily use by him for such purpose, and, in order to make said audit, said accountant needs the free and uninterrupted use of said books and accounts daily.’
"It was further alleged by the county commissioners that said audit was being made in good faith for the purpose of ascertaining whether the books and accounts were properly kept, and whether there were any moneys due the state or county which had not been paid over, and that, when the report of the auditor was completed, they (the commissioners’ court) would require a strict accounting and settlement to be made by every county officer found in arrears, and they denied that they had ever refused to permit the plaintiffs to, inspect any records relating to the financial affairs of the county, and that they fully recognized such right; but they admitted that they had passed an order instructing the other defendants not to permit the books under their control to be turned over to a number of nonresident strangers from another coun.ty who claimed to be acting for the plaintiffs in making an audit of said books and records; and they alleged that the plaintiffs belonged to a political faction opposed to them, and that the object of the pretended audit inaugurated by the plaintiffs was for the purpose of harassing the defendants and other officers of the county, and not with the bona fide purpose of aiding or assisting the due and orderly government of the county, nor for the purpose of recovering for the county any sum or sums of money which might be due it; and they alleged that when the audit was completed they would take such steps as would preserve all the rights of the county.
“Plaintiffs filed supplemental petiton in which they reiterated practically their allegations in the original petition, and in addition alleged that plaintiffs were interested in determining the status of the finances of the county and the disposition of the funds and taxes collected by reason of the fact that they wished this data to use in a certain suit wherein the plaintiffs sought to restrain the county collector and the commissioners’ court from collecting certain taxes levied upon their property on the ground that the levies were unlawful; and they also joined issue on the question as to whether or not the right to;inspect the records of the county had been denied them, and alleged that, if the books were used by an auditor appointed by the commissioners’ court, nevertheless that would not interfere with the audit and examination which would be made by the auditors of the plaintiffs, and that an orderly examination could be made by both auditors concurrently, and they also joined issue with the defendants on the matters of fact alleged in defendants’ answer.
“Defendants filed supplemental answer denying that the auditors of plaintiffs would not interfere with the auditor appointed by the commissioners’ court, and alleging that all the books were being daily and constantly used by the auditor appointed by the commissioners’ court, and that such auditor needed all the books and accounts at all times to make the audit, and that the use of the books by any other auditor at that time would interfere and hamper the auditor employed by the county, who was then engaged in making the examination of the books.”

The court overruled defendants’ pleas and exceptions, and upon a hearing granted the ■writ of mandamus against all the county officers sued, and also the injunction against the commissioners’ court.

The court filed findings of fact and conclusions of law. As the findings of fact are not attacked, they are adopted by us as our findings of fact:

“Findings of Fact.
“First. 1 find that plaintiffs are citizens and taxpayers of Duval county, Tex., and that the defendant Palacios is county clerk of Duval county; that defendant Tobin is tax collector of said county; that the Mercantile Exchange Bank is operated and managed by the defendants A. Levy and Johanna Levy, and it is the bonded depository of Duval county and of the school fund of said county; that defendant S. H. Woods is the county judge of said county; and that he, together with the defendants Parr, Carillo, Garza, and Iiinojosa, constitute the commissioners’ court of said county.'
“Second. I find that the plaintiffs on or about the SOth of January, 1914, employed a competent auditor for the purpose of auditing the books of Duval county with a view of determining the financial affairs of the county and the manner in which the officials charged with the collection, management, and disbursement of funds were performing their duties, and for the purpose of determining whether there were any moneys due the county by any of the officials who had collected money belonging to the county, and whether any of the moneys to the county had been retained or illegally disbursed by any of the officers charged with the disbursement of the same.
“Third. I find that .the auditor so employed began to make said audit, and, while engaged in such audit, the defendant the commissioners’ court passed an order forbidding any person to audit said books and directing the other defendants not to allow said auditor to'further audit the books and records of the county.
“Fourth. I find that all the defendants, county officers, acting together, did refuse to permit the auditor selected by plaintiffs to further audit the said books, documents and papers showing the financial condition of the county, and still refuse to permit such audit.
“Fifth. 1 find that plaintiffs were not prompted by motives ■ of idle curiosity in seeking the audit, but desired to make the same for the reason that they believed the finances of the county have not been faithfully administered, and they believed that there were certain sums of money due the county of Duval by some of the county officers, and they desired to ascertain the amount thereof in ord^r that the same might be recovered for the county.
“Sixth. I find that the plaintiffs have sufficient evidence to justify their belief that there were certain sums of money due the county by those charged with the collection, management, and disbursement of same, and that they have sufficient evidence to justify their allegation that the books, records, and documents, relating to the financial affairs of the county, have not been fully kept in accordance with law.
“Seventh. I find that the plaintiffs will not be permitted by the county officers, through the auditor selected by them, to make an audit of the books of the county, unless the county officers are compelled to do so by a writ of mandamus, and unless the commissioners’ court is restrained from interference by injunction.
“Eighth. I find that, prior to the filing of this suit, the commissioners’ court of Duval county-employed an auditor for the purpose of auditing the books, stubs, documents, and records showing the financial condition of said county and the manner of the handling and disbursing of the funds by all of the county officers, and that such auditor, so employed by the commissioners’ court, was actually engaged in the audit of the books of the county at the time this suit was filed by the plaintiffs and at the time of this trial.
“Ninth. I find that the auditor employed by the Qommissioners’ court was engaged in the audit of the books of the county at the time this suit was tried, and that it would take him at least two months - to complete his audit of the books, documents, stubs, and records showing the financial condition of Duval county, as directed by the commissioners’ court, and that he was actually engaged, at the time of this trial, in using and handling said books, in making such audit.
“Tenth. I find that the auditor selected by the plaintiffs could proceed with his audit of the books of the county without interfering with the auditor selected by the commissioners’ court.
“Eleventh. I find there is evidence that the county collector of Duval county is in arrears for the years 1910, 1911, and 1912 in the sum of about $5,000, as follows: For the year 1910, $280 (about); for the year 1911, $2,200 (about); and for the year 1912, $2,600 (about).
“Twelfth. I find that the auditor employed by plaintiffs made an examination for said three years sufficient to determine the condition of the tax collector’s account for said period; that he was not permitted to examine any other accounts for any other years.
“Thirteenth. I find that the county treasurer’s cash books, and all other books kept by him up to the month of December, 1910, have disappeared, and that the county treasurer, and the county judge, disclaim any knowledge of their whereabouts, and say that same is unknown to them. ,
“Fourteenth. I find that the account kept with the county by’the county depository did not distinguish between the various funds' of the county, and that the jury fund, road and bridge fund, general fund, and courthouse and jail fund were kept in one account by the depository, and that checks were paid indiscriminately, without regard to any of said funds.
“Fifteenth. I find that from May, 1910, to February, 1911, no treasurer’s report was recorded or approved by the commissioners’ court of Duval county.
“Sixteenth. I further find that, when the May report of 1910 was filed, it showed a balance in the hands of the treasurer to the credit of different funds of Duval county to the amount of more than $8,000.
“Seventeenth. I find that the next treasurer’s account, approved by the commissioners’ court of Duval county in February, 1911, showed no balance brought forward from the previous report of the treasurer, and that said sum of $8,-000 is not accounted for by said report.
“Eighteenth. I find that said sum was never thereafter accounted for, nor was any action ever taken thereon by the commissioners’ court.
“Nineteenth. I find that there is evidence to sustain the fact that for a long period of years A. Parr, county commissioner, has drawn out funds from the county treasury in the following manner: He has drawn orders on said county treasurer, directing him to pay to various people certain sums of money, and that the treasurer would honor these orders and pay the same by check on the county depository, and that this is the usual and customary manner, and has been the custom of drawing money out of said treasury for a long period of years; and the commissioners’ court would thereafter order a warrant to issue in the manner described in the next succeeding paragraph.
“Twentieth. X also find that S. H. Woods, county judge, issued .orders upon the county treasurer, which were in a like manner honored by said treasurer, and that, when the commissioners’ court thereafter met these orders, they would merely add and determine the aggregate of the sum ascertained, and' the clerk would then be ordered to draw warrants in favor of the treasurer for such amounts, and that for the year 1913 these orders aggregated the sum of approximately $12,000.
“Twenty-First. I find that the finance ledger ■ of Duval county had not been kept from July, 1911, until the time when plaintiffs’ auditor began to audit the books of said county, and until some time after February 1, 1914, after which last-mentioned date same was brought down to date.’
“Twenty-Second. I find that defendant the Mercantile Exchange Bank, about December, 1912, placed the sum of $313.60 to the credit of the available school fund, when the said amount was a part of the permanent school fund of said county. , „ ,
, „ , “Twenty-Third. 1 further find that the defendants Woods and Parr borrowed money from the Mercantile Exchange Bank, in the name. of Duval county, and. that the same was credited on the treasurer’s books at a time when said Mercantile Exchange Bank was the county depository of said county and the county treasury of the school fund of said county. I also •find that Woods and Parr, in the name of the county, borrowed money with which to operate the county from other banks, and that said sums were repaid by the county.
“Twenty-Fourth. I find that many thousands of dollars have been drawn out of the county depository of Duval county and expended in the following manner: The county commissioners and county judge would give orders on the county treasurer depository, and these would be paid. Subsequently these orders would be placed in an envelope, and the total amount thereof stated on the outside of the envelope, and the only audit that .was made of this account, m order to prove the same, was as follows: When the commissioners’ court would thereafter meet, they would add the amounts of the ordérs m the envelope, and, if that amount agreed with the amount stated on the back of the envelope, an order would be entered directing the county clerk to issue a warrant in favor of the county treasurer for the aggregate of these orders.
“Twenty-Fifth. I find that the defendants acted together in denying plaintiffs and their auditors the right to audit said books.
“Twenty-Sixth. I find also that plaintiffs had a personal interest in the matter, in that they had a suit pending touching the validity of the levy of the courthouse and jail tax for 1913, and that an audit of the books was essential in order to ascertain facts bearing upon the issues involved in said case.”

Opinion.

The first three assignments of error are grouped, and the contentions made thereunder may he summarized as follows: (1) That plaintiffs, being private citizens, had no right to have a privately employed auditor make an audit of the county finance records. (2) That such right is only confided to the commissioners’ court. Appellants do not cite any statute which gives the commissioners’ court the exclusive power to appoint an auditor, or in fact any power to do so, nor have we found any such statute, but article 1451 imposes upon the commissioners’ court the duty of examining the accounts and reports of the county officers at each term. Nor do we find any statute giving citizens or taxpayers the general right of inspection of all books, records, and papers of county officers, but find that inspection of the finance ledger and of the books and records of the county clerk has been provided for by statutes. See articles 1401 and 1758, R. S. 1911. There being no constitutional provision relating to the right of inspection, our inquiry must be directed to the proposition whether the common law of England, as it obtains in this state, authorizes the giving to appellees of the right of inspection granted by the court. The common law of England referred to in article 5492 is that which was declared by the courts of the different states of the United States. Grigsby v. Reib, 105 Tex. 597, 153 S. W. 1124. We find that, in the decisions of other states, the right of the cor-porator to inspect the records and books of the public or municipal corporation, of which he is a constituent member, has been uniformly recognized, but that there is no uniformity in the holdings with regard to the facts or circumstances which must be shown before a court will be justified in awarding the. writ of mandamus commanding the custodians of the books and records to permit such inspection. Such records and books are of a public nature, and it is well settled that, where the evidence contained therein is required in a civil action, any person interested in such action is entitled to inspect such records and books and may secure the exercise of the right by the aid of a writ of mandamus. It has also been held in some cases that a writ will be awarded where no special or private interest is shown by the corporator, but he shows that he is a citizen and taxpayer, and that it is important to the public interest for a general examination of the books and rec.ords to be had.

There being no decisions of our own courts upon this matter, so far as we have been able to ascertain, we have had recourse to the decisions of the courts of other common-law states, and conclude that the opinion of the Supreme Court of Tennessee, in the ease of State ex rel. Welford v. Williams, 110 Tenn. 549, 75 S. W. 948, 64 L. R. A. 435, constitutes the best statement of the rules of law which should be applied to this character of case. We quote from said opinion as follows:

“In theory the right of examination is absolute,. but in practice it is at last only a matter of discretion, because such application is likely at any time to be refused on the part of the custodian of the books and papers sought to be examined, and then the right must be forced by mandamus, and this writ is not of absolute right, but merely of discretion, to be awarded only in a proper case; the facts claimed as authorizing its issuance to be judged of in every case by the court, and the writ to be awarded or withheld upon a consideration of all the circumstances presented. So, while the right is, in theory, absolute, yet it is in practice so limited by the remedy necessary for its enforcement as that it can be denominated only a ‘qualified right.’ The right to an examination for a special purpose, as, for example, to obtain specific information to use in a litigation between the applicant and third parties, or between the applicant and the corporation, and the like eases, while not, in principle, standing upon higher grounds, yet is the more easily grantable, because it does not involve so much time, and so much inconvenience to the custodian of the books and papers, and so much interruption of business, as in case of a general examination. Xet it cannot be doubted, under a state of facts showing it to be important t.o the public interest that the general examination of the books of a municipality should be had, that the court should allow 'such .examination at the suit of one who is a citizen and taxpayer of the corporation. The right rests, not only on the ground that the books are public books, but also on.the same ¡ principle that authorizes a taxpayer to enjoin the enforcement of illegal contracts entered into by the municipality, county, or state, for the protection of the applicant and all other taxpayers from illegal burdens. And it is obvious that, in making and enforcing such application, the taxpayer acts, in a very real sense, not only for himself, but for all other taxpayers, and acts, therefore, in the capacity, as it were, of a trustee for all. It must be admitted, also, that the exercise of such power, if prudently and carefully guarded, cannot be otherwise than salutary, because the knowledge that it can be exercised by a citizen and taxpayer, and may be exercised when the public good shall seem, on sound reasons, to demand it, cannot result otherwise than in producing an added sense of responsibility in those who administer the affairs of municipal corporations, and in inducing a greater carefulness in the discharge of the trusts imposed upon them by their fellow citizens under the sanctions of law.”

See, also, Dillon on Municipal Corporations (5th Ed.) §§ 560, 1505; State ex rel. Colscott v. King, 154 Ind. 621, 57 N. E. 535; State ex rel. Ferry v. Williams, 41 N. J. Law, 332,. 32 Am. Rep. 219; Clement v. Graham, 78 Vt. 290, 63 Atl. 146, Ann. Cas. 1913E, 1208; Barrickman v. Lyman, 154 Ky. 630, 157 S. W. 924; Excise Commission v. State ex rel. Skinner, 179 Ala. 654, 60 South. 812.

The law, as stated in the opinion quoted from, is logically in accord with the holdings that a taxpayer has sufficient interest to maintain a suit to prevent the illegal creation of a debt or the illegal disposition of moneys of a county. See City of Austin v. McCall, 95 Tex. 577, 68 S. W. 791; Tullos v. Church, 171 S. W. 803, recently decided by this court; Crampton v. Zabriskie, 101 U. S. 609, 25 L. Ed. 1070. We believe the principles enunciated in the foregoing quotation from the opinion of the court in the Williams Case should be applied to the facts of this case, unless our statutes conflict therewith. While no contention is made that any statute denies the corporator of a public or municipal corporation such right of inspection, yet appellant does contend that certain articles of our statutes provide methods of examining the books and accounts of county officers, which are intended to be exclusive, and therefore preclude the exercise of the right of inspection existing under the common law. We are cited to all of chapter 1, tit. 29, Revised Civil Statutes, as well as to articles 1453, 6030, 6041, and 6042, and articles 1578 to 1582, Revised Criminal Statutes. Chapter 1, tit. 29, relates to methods of keeping the accounts of the county, and only one article bears upon the question of the right to inspect such accounts. Article 1402 provides that the finance ledger shall “be at all times subject to the inspection of the public.” If the right exists at common law to inspect all the books and records and to secure the aid of a writ of mandamus by making the requisite showing of facts justifying the granting of the writ, we fail to see how the enactment of an article, which gives the public the absolute right to inspect one of the books, can be considered as an implied revocation of the right to inspect all the books under certain circumstances. The finance ledger is kept by the county clerk, and by article 1758 it is further provided that all books and records and file papers belonging to his office shall at all reasonable times be open to the inspection of any citizen. This provision does not by implication deny the right of inspection of the records of other offices under the common-law rules, but gives an absolute right to the citizens to inspect the clerk’s books. Articles 6030, 6041, and 6042 relate to removal of county officers, and do not in any way affect the common-law right of inspection. The criminal statutes provide penalties for the failure of the officers to do their duty, and are in no way inconsistent with the right of inspection. While the Legislature has passed many laws for the purpose of protecting the citizens from misconduct of the county officers, not one of such laws expressly or impliedly deprives the citizens of such right of inspection as is given by tbe common law. Such laws do not give rights exclusive in their nature. State v. Williams, 110 Tenn. 549, 75 S. W. 948, 64 L. R. A. 418; State v. King, 154 Ind. 621, 57 N. E. 535. We find in Cook on Corporations (4th Ed.) in a note under section 518, the following:

“The common-law right of inspection remains, although a special statutory right is given. People v. Lake Shore R. R., 11 Hun (N. Y.) 1 (1877).”

The case referred to is not accessible to us. Appellants, in their supplemental brief, also cite article 1160 (R. S. 1911), to show that the Legislature has seen fit to make all the books and records of private corporations open to the inspection of any stockholder at all reasonable times.

“Where a statute gives to stockholders the right to examine corporate books, mandamus seems to be granted as a matter of right.” Cook on Corporations (4th Ed.) § 514; State v. Transit Co., 124 Mo. App. 111, 100 S. W. 1128.

But when mandámus is sought under the common law, various elements enter into the determination of the issue, and the courts and law writers have not been in accord in announcing the rules with respect to the facts to be shown to entitle the stockholder to writ of mandamus. The fact that our Legislature has given the stockholders of a private corporation an absolute right of inspection instead of leaving them only the common-law right raises no implication that it desired to deprive corporators of public or municipal corporations of the common-law right of inspection.

We conclude that the appellees, under the common law, had the right of inspection under the facts found by the court, and were entitled to the writ of mandamus upon the showing made with regard to the public interests, which, as citizens and taxpayers, they desired to protect, and also upon the court’s twenty-sixth finding of fact, which established that they had a private or special direct interest for the protection of which they were entitled to inspect the books, records, and papers for the purpose of procuring evidence. Said assignments of error are therefore overruled.

The fourth assignment reads as follows:

“Having found that the commissioners’ court was having an audit, made in good faith, it was error to grant the relief to plaintiff which the court did.”

The proposition under this assignment is to the effect that, where the commissioners’ court is having a complete audit made of its finances, a group of private citizens have no right, at the same time, to have a privately employed auditor also make such audit. In the first place, the court did not find that the commissioners’ court was having an audit made in good faith, nor that the auditor appointed by the commissioners’ court was making, or attempting to make, a complete audit of the finances of the county. Were it necessary to support the Judgment of the court, a finding could be predicated upon the evidence, to the effect that the appointee of the cbmmissioners’ court was incompetent to make an audit, and also that the audit begun by such appointee only covered the period beginning February, 1911, when, as is shown by the court’s findings, some of the officers were in arrears for the year 1910. In view of the findings as to how the business of the county had been conducted by members of the commissioners’ court, the district court was correct in deciding that the appellees should not be required to abide an audit made by a person appointed by such court after appel-lees’ agent had begun his audit. It is further to be noted that the court found that the audit to be made by appellee’s agent would not interfere with that being-made by the appointee of the commissioners’ court. The assignment of error is not well taken, and is overruled.

By the fifth assignment of error it is contended that a plea in abatement should have been sustained wherein it was urged that plaintiffs had no right to sue on behalf of the county to recover money found to be due it, and therefore had no right to an audit as a basis for ascertaining the amounts due. This assignment ignores paragraph 5 of plaintiffs’ supplemental petition, in which the direct personal interest of plaintiffs in the audit of the books and records is fully pleaded, and which pleading is sustained by the court’s twenty-sixth finding of fact. But regardless of the pleading just referred to, which furnishes ample ground for overruling the plea in abatement, we do not think it at all necessary that plaintiffs, in order to maintain their suit, should allege that the district or county attorney, charged with the duty, under article 366, of suing for money due the county, has agreed to bring suit if the audit discloses that money is due from other officers. The presumption is that such officer will do his duty, and that, upon the furnishing of evidence to him showing that there is due the county certain money by- officers, he will bring suit therefor. It also appears, that if the officers, whose duty it is to sue for money due the county, willfully refuse to do so, proceedings could be instituted for their removal. There is furthermore high authority for holding that when the officers, whose duty it is to sue for the county, refuse to do so, a taxpayer may maintain the suit in behalf of the county. Zuelly v. Casper, 160 Ind. 455, 67 N. E. 103, 63 L. R. A. 133; Willard v. Comstock, 58 Wis. 565, 17 N. W. 401, 46 Am. Rep. 657; Lumber Co. v. McIntyre, 100 Wis. 258, 75 N. W. 964, 69 Am. St. Rep. 025; Commonwealth v. Tilton (Ky.) 54 S. W. 11; Russell v. Tate, 52 Ark. 541, 13 S. W. 130, 7 L. R. A. 180, 20 Am. St. Rep. 193; Lodor v. McGovern, 48 N. J. Eq. 275, 22 Atl. 199, '27 Am. St. Rep. 446. The assignment is overruled.

We have only discussed the questions raised by the assignments of error, and ignored contentions urged in argument,'oral and written, which are not assigned as error.

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


source: Caselaw Access Project

author: PRENDERGAST, P. J.

license: Public Domain

text:
    Ex parte LAMBERT.
    (No. 3386.)
    (Court of Criminal Appeals of Texas.
    Jan. 6, 1915.)
    1. Criminal. Law (§§ 419, 420) — Evidence — Admissibility.
    A letter written by one claiming to be a wife of accused is not admissible to show that he was guilty of the offense of bigamy.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 973-983; Dec. Dig. §§ 419, 420.]
    2. Habeas Corpus (§ 85) — Discharge—Evidence.
    Under Code Cr. Proc. 1911, art. 206, providing that where upon examination under ha-beas corpus it shall appear that there is a probable cause to believe that an offense has been committed by the prisoner he shall not be discharged, the court may, on habeas corpus, consider evidence which would not be admissible at trial, where the deficiencies in the evidence could be cured and ' competent evidence of the same facts secured.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§ 77, 78; Dec. Dig. § 85.]
    Appeal from District Court, Hopkins County; Wm. Pierson, Judge.
    Application by S. E. Lambert for writ of habeas corpus. From judgment denying the writ, relator appeals.
    Affirmed.
    J. A. Dial, of Sulphur Springs, 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

   PRENDERGAST, P. J.

By complaint before a justice of the peace appellant was charged with bigamy. Upon an examining trial the justice bound him over on a $750 bond to appear before the grand jury next to convene. He sued out a writ of habeas corpus before tbe district judge, wbo, after bearing tbe evidence, likewise bound bim to appear before said grand jury, fixing bis bond at $500. He failed or refused to make bond and was committed to jail.

On tbis babeas corpus bearing tbe state, over his objections, introduced a certified copy of a marriage license and return thereon from the probate court of Lauder-dale county, Ala., authorizing bim to marry Ester Viola O.asttell and bis marriage to her in December, 1007. Tbis copy was certified to by the judge of probate of said court and county. It was not authenticated as required under the act of Congress, so as to properly be introduced in evidence, over that objection, on final trial. However, there is nothing to indicate but that it is a fact that such license was issued and Lambert was married to said woman, and that tbe properly authenticated copy can be procured in ample time for the action of the grand jury and final trial. Tbe state also introduced a properly certified copy of a license from Hopkins county, Tex., authorizing bim to marry, and the return thereon shows his marriage to, Mrs. Nannie Bruce in November, 1913. The sheriff of said Hopkins county, who made the complaint herein, testified, in substance, that he made said complaint on information which came to him from said two women, the first one now living in Ethridge, Tenn,, the' latter in Stamps, Ark., and he identified, and the state introduced, over appellant’s objection, what purported to be a recent letter from the former. This letter, even if properly proven up over his objections, could in no event be introduced on final trial. As we understood appellant’s attorney in oral argument, in submitting this case, he, in effect, conceded that the evidence heard by the district judge indicated appellant may be guilty of the offense charged, or, rather, that legal evidence may in time be gotten by the state sufficient to probably show his guilt, yet, as the evidence which the district judge did hear was legally inadmissible, he should have discharged him and not bound him over.

We are of the opinion, both from the statute and decision of this court, that the action of the district judge was in all things correct. The statute says:

“Where, upon .an examination under habeas corpus, it shall appear to the court or judge that there is probable cause to believe that an offense has been committed by the prisoner, he shall not be discharged, but shall be committed or admitted to bail, according to the facts and circumstances of the case. Art. 206, C. O. P.

This court, in Ex parte Walck, 25 Tex. App. 171, 7 S. W. 666, after quoting the above article, said:

“Under the facts as they appear in this record,- we are of opinion that there was no error in requiring a bond of applicant; it appearing to us that there was probable cause to believe that an offense had been committed by the applicant. But it is not to be inferred from this that there is evidence sufficient to sustain a conviction or warrant an indictment. We believe, under the facts of the case, that it was proper to require the bond, so as to secure the presence of the applicant, if, upon a more thorough investigation, sufficient evidence should be discovered upon which to present an indictment.”

The judgment is affirmed.


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

text:
    ETHRIDGE v. STATE.
    (No. 3364.)
    (Court of Criminal Appeals of Texas.
    Jan. 6, 1915.)
    Indictment aind Ineoemation (§ 5) — Waives.
    Const, art. 5, § 17, provides that prosecutions may be commenced in misdemeanor eases by indictment or by affidavit as provided by law, Code Or. Proc. 1911, art. 448, provides that misdemeanors may be presented by either information or indictment, while article 449 declares that offenses must be so prosecuted. Held, that as article 479 provides that an information shall not be presented until oath has been made by some credible person charging defendant with misdemeanor, and as article 35 requires the filing of an information upon the filing of a complaint, one prosecuted for a misdemeanor in the county court cannot waive failure to file an information, that being a jurisdictional matter.
    [Ed. Note. — Eor other cases, see Indictment and Information, Cent. Dig. § 28; Dec. Dig. § 5:]
    Prendergast, P. J., dissenting.
    Appeal from Travis County Court; Wru. von Rosenberg, Jr., Judge.
    Lee Ethridge was convicted of gaming, and he appeals.
    Reversed and remanded.
    Faulk & Parker, of Austin, 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

   DAVIDSON, J.

The case originated in the county court by filing complaint charging appellant with gaming. There was no information filed. Appellant was tried only on the complaint'. Motion in arrest of judgment was based on the failure of the county attorney to file a complaint. This was overruled by the court, it seems on the theory that appellant had gone to trial without raising the objection that the information had not been filed. This is not a valid reason. Nor did it constitute waiver.

The Constitution (article 5, § 17), among other things, provides that “prosecutions may be commenced in said court by information filed by the county attorney, or by affidavit, as may be provided by law.” The Legislature has provided in article 35, C. C. P.:

“If the offense be a misdemeanor, the attorney shall forthwith prepare an information, and file the same, together with the complaint, in the court having jurisdiction of the offense.”

The same authority has further provided in article 448, C. C. P.:

“All misdemeanors may be presented by either information or indictment.”
And article 449 provides:
“All offenses, known to the' penal law of this state, must be prosecuted, either by indictment or information. This provision does not include fines and penalties for .contempt of court, nor special cases in which 'inferior courts exercise jurisdiction.”

Article 478 sets out the required allegations in an information. Article 479 provides that the information shall not be presented by the district or county attorney until oath has been made by some credible person, charging the defendant with an offense. The oath shall be in writing and filed with the information.

The Legislature is vested with authority, doubtless, to prescribe that the case may be tried, in misdemeanors, in the county court without filing an information under the language of articles 5, 6, and 17 of the Constitution, or it may require that the information be filed. This has not only not been done, but the opposite is required. The Legislature has provided that the information shall be filed, based upon a complaint or affidavit. This would settle the question beyond dispute. Construing the Constitution and the statutes, the courts have invariably held that the county court cannot acquire jurisdiction or try a misdemeanor where it originated in the county court, until • an information has been filed. See Garza v. State, 11 Tex. App. 410; Kinley v. State, 29 Tex. App. 532, 16 S. W. 339; Leal v. State, 51 Tex. Cr. R. 426, 102 S. W. 414; Baker v. State, 54 Tex. Cr. R. 53, 111 S. W. 735. This court will reverse a conviction from the county court where an information was not filed in that court, provided the case originated in the county court, whether there was a motion made in the trial court or not. It is a jurisdictional question. An information is as prerequisite, under such circumstances, in the county court, as is the indictment in a felony prosecution in the district court. To hold that a party could waive an information in the county court would be equivalent to holding substantially that the party could waive an indictment in a felony prosecution. The invalidity of a prosecution originating in the county court without an information has been decided so often, and has become so thoroughly the settled law, it is deemed unnecessary to discuss the matter or cite further authorities.

The judgment is reversed and the cause remanded.

HARPER, J.

(concurring in reversing). An information cannot be waived. See Deon v. State, 3 Tex. App. 435, Garza v. State, 11 Tex. App. 410, and Leal v. State, 51 Tex. Or. R. 425, 102 S. W. 414. Our Constitution provides (section 17, art. 5):

“Prosecutions may be commenced [in misdemeanor cases] * * * by information filed by the county attorney, or by affidavit, as may be provided by law.”

The law has provided under this Constitution:

Article 229, G. G. P.: “For all misdemeanors, an indictment or information may be presented within two years from the commission of the offense, and not afterward.”
Article 448: “All misdemeanors may be presented by either information or indictment.”'
Article 449: “All offenses, known to the penal law of this state, must be prosecuted either by indictment or information.”

The only instance in which, under our law, a prosecution may be had without an- indictment or information, is in those instances in which the justice courts or other inferior courts are given jurisdiction, and the cases are filed in those courts. In every instance, where the case is filed in the county court, the law requires an information to be filed, and it can no more be waived than an indictment can be waived in the district court. Article 477 defines an information as a written statement filed and presented in behalf of the state by the district or county attorney, accusing the. defendant therein named of an offense which is by law subject to be prosecuted in that manner. Article 47S gives tbe requisites of an information, while article 479 provides that an information shall not be presented by the district or county at-. torney until oath has been made by some credible person charging the defendant with an offense. Nowhere in the Code is a prosecution authorized in the county court upon the mere filing of an oath, but instead article 35 provides that, upon filing the oath or complaint, the county attorney shall forthwith prepare and file an information. While under the Constitution the Legislature might have provided for a prosecution without an information, they did not do so, but provided that in each and every instance an information must be filed in each case in the county court. A plea of guilty cannot be accepted until information is filed.

PRENDERGAST, P. J.

(dissenting). Judge DAVIDSON’S statement of case is incorrect. The solemn judgment of the court in overruling appellant’s motion in arrest of judgment states clearly:

“The said motion is refused and overruled for the reason that, this case having gone to trial with the defendant, by his attorney, Henry Faulk, both present in court, waiving the filing of the information, and all other formalities, and announced ready to try case on complaint just filed, which defendant and attorney were present in court.”

And this is in. no way disputed. It was not “on the theory that appellant had gone to trial without raising the objection that the information had not been filed,” as stated by Judge DAVIDSON. He and his attorney both expressly waived the filing of an information, and agreed to try the case on the complaint. This is a companion ease of No. 3365, James Ethridge, 172 S. W. 786, this day decided, and the two cases are precisely the same, only different defendants.

For my views on the question raised and decided I refer to my opinion in said James Ethridge Case.

I respectfully dissent.


text:
    ETHRIDGE v. STATE.
    (No. 3365.)
    (Court of Criminal Appeals of Texas.
    Jan. 6, 1915.)
    Indictment and Information (§ 5) — Waiver.
    One prosecuted in county court for a misdemeanor cannot waive the filing of an information.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 28; Dec. Dig. § 5.]
    Prendergast, P. J., dissenting.
    Appeal from Travis County Court; Wm. Von Rosenberg, Jr., Judge.
    James Ethridge was convicted of gaming, and he appeals.
    Reversed and remanded.
    Faulk & Parker, of Austin, for appellant. C. B. 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

   PRENDERGAST, P. J.

This is a companion case with No. 3364, 172 S. W. 784, Lee Ethridge, this day decided. There is no distinction whatever between the cases and .question' — only different defendants.

On October 13, 1914, proper complaint was made and sworn to before the county clerk of Travis county, charging appellant with unlawfully betting with dice, at a game of craps, on that same day, but before the complaint was made and filed. The clerk immediately filed the complaint in the county court, and on the same day, by his agreement, the case was tried before a jury, he pleading only not guilty. The jury found him guilty, and assessed a fine of $10 as his punishment. For this offense the law fixes the punishment at a fine of not less than $10 nor more than $50. P. C. art. 557. The complaint was in no way attacked in the lower, nor in this, court. On October 15th, within two days of the conviction, appellant by his attorney filed a motion in arrest of judgment on the sole ground: “Because this case was presented upon affidavit or complaint, and no information was filed on Same.” It was heard and overruled by the trial judge on November 28, 1914. In the judgment overruling it, the trial judge states that when the case was tried both appellant and his attorney were present in court, and they waived the filing of an information, and agreed to try the case on the complaint only,' and that was the reason be overruled said motion. There is no statement of facts. Neither is there any information in the record. The sole question is whether appellant could waive an information and by agreement be tried in the county court on a complaint only. I cannot find that this question has ever before been decided.

The Constitution (article 5, § 16) expressly confers original jurisdiction on the county court to try this character of a misdemeanor case. It also (article 5, § 19) expressly confers such jurisdiction on justices of the peace.. The statutes under these constitutional provisions (C. O. P. arts. 98, 106) expressly confer concurrent jurisdiction on the county court and justices of the peace to try such misdemeanor cases. All the decisions of this court are to the same effect. I cite only some of them. Solon v. State, 5 Tex. App. 301; Woodward v. State, 5 Tex. App. 296; Jennings v. State, 5 Tex. App. 298; Leatherwood v. State, 6 Tex. App. 244; Chaplin v. State, 7 Tex. App. 87; Ballew v. State, 26 Tex. App. 483, 9 S. W. 765.

Article 63, C. O. P., says:
“ * * * When two or more courts have concurrent jurisdiction of any offense against tbe penal laws of this state, the court in which * * * a complaint shall first be filed shall retain jurisdiction of said offense to the exclusion of all other courts.”

The statute expressly prohibits an information until tbe complaint is made and filed therewith. O. G. P. art. 479. It is the complaint, and not the information based on it, which gives the county court jurisdiction. No information whatever is required or authorized to be filed in tbe justice court when a complaint charging such misdemeanor is filed and the case tried in that court. Ex parte Nitsche, 170 S. W. 1101. On appeal to the county from the justice court the case is tried de novo in the county court, on the complaint alone without any information. Ex parte Morales,? 53 S. W. 107.

In defining the duties of district and county attorneys (article 34 et seq., O. C. P.) the law says they shall take complaints and themselves swear the persons making them, in which event, if the complaint charges a misdemeanor (article 35), they “shall forthwith prepare an information, and file the same, together with the complaint, in the court having jurisdiction of the offense.” These articles have been construed in the Nitscbe Case, supra, not to require the district or county attorney to file an information if he files the complaint in the justice court, even though the complaint is sworn to before him. In complaints sworn to before any other officer, except district and county attorneys, and it is filed in the justice court for trial, no information is required to be filed. The only constitutional provision on' this subject is article 5, § 17, which says:

“Prosecutions may be commenced in said court [county] by information filed by the county attorney, or ip affidavit, as may be provided by law. Grand juries impaneled in the district courts shall inquire into misdemeanors, and all indictment therefor returned into the district courts shall forthwith be certified to the county courts, or other inferior courts, having jurisdiction to try them for trial; and, if such indictment be quashed in the county, or other inferior court, the person charged shall not be discharged if there is probable cause of guilt, but may be held by such court or magistrate to answer an information or affidavit.”

Unquestionably under this the Legislature could regulate the whole matter, and authorize an original trial in the county court on complaint only.

There are but three statutory provisions on the subject: First, article 35, O. C. P., which says:

“If the offense be a misdemeanor, the attorney shall forthwith prepare an. information, and file the same, together with the complaint, in the court having jurisdiction of the offense.”
.Second, article 449, which is:
“All offenses, known to the penal law of this state, must be prosecuted, either by indictment or information. This provision does not include fines and penalties for contempt of court, nor special cases in which inferior courts exercise jurisdiction.”

If these two articles were all, then I think unquestionably an original trial for a misdemeanor in the county court on a complaint only would be illegal and on appeal to this court would require a reversal. But there is another, article 22, which says:

“The defendant in a criminal prosecution for any offense may waive any right secured to him by law, except the right of trial by jury in a felony ease.”

There can be no question but that the Legislature had the power and authority to enact this article, and that it is valid and binding on this court. This article was first placed in the Code in 1856, and has been re-enacted by the Legislature in every revision of the Code since then. The parties and trial judge acted on this provision in the trial of this case. Both appellant and his attorney, with the court’s assent, expressly waived the filing by the county attorney of an information, and agreed to try the case, and did try it, on the complaint only. I think there can be no doubt but that, under said article 22, appellant had the right to waive an information and agree to be tried on the complaint only. If he had been acquitted he could not have been again tried and convicted. He should not be permitted to take advantage of said article 22 if acquitted, and not be bound, if convicted.

Onr statute (article 843, C. C. P.) expressly prohibits, on a retrial, an allusion to a former conviction of an accused. When this was done by a state’s witness in a murder case, with life sentence imposed, this court held that where the trial court then gave the accused an opportunity to withdraw the case from the jury, and have a trial before another jury, which he declined, he waived the fatal error of such allusion. Coffman v. State, 165 S. W. 939.

Our statute also (article 790) prohibits an allusion to or comment on an accused’s failure to testify. In the recent case of Johnson v. State, 171 S. W. 1128, this court held that where this was expressly done in a robbery ease with five years in the penitentiary assessed, and the accused did not, at the time, object, he thereby waived this otherwise fatal error, this court saying:

“If appellant and Ms counsel, knowing that such error has been committed, proceed with the trial without objection, take chances on a verdict of acquittal and, in case it results adversely, * * * then seek to raise such objection, it comes too late. The courts cannot be trifled with, their time occupied, and the necessary expense incurred to no good purpose.”

Our Constitution (article 1, § 15) provides:

“The right of trial by jury shall remain inviolate.”

Our Constitution (article 5, § 17) also provides:

“A jury in the county court shall consist of six men.”

Our statute (article 645, C. C. P.) also says:

“In the county court * * * the jury shall consist of six men."-

Again, article 766 says:

“In the county court, in all criminal actions, the jury consists of six men, and the verdict must be concurred in by each of them.”

Notwithstanding all these eonstitntional and statutory provisions, this court has all the time held that under said article 22, O. O. P., an accused in the county court can not only waive a jury altogether, but waive the full number and be tried by a less number than six. Stell v. State, 14 Tex. App. 59; Mackey v. State, 151 S. W. 802.

Many other illustrations from our decisions could be given; for instance, such as the time allowed to plead, and the summoning and organization of juries. Articles 578 and 579 say the “defendant shall be allowed two entire days” to plead. He can waive this, and does so, when he goes to trial without demanding the two days. Callison v. State, 37 Tex. Or. R. 211, 39 S. W. 300.' So of the provisions of. our Code about juries. In fact, although the provisions of our Procedure Code are generally in such language as “shall" and “shall not,” the rule is that all such provisions are directory and not mandatory, and that an accused can always waive whatever is thus apparently mandatory. Murray v. State, 21 Tex. App. 466, 1 S. W. 522'; Hudson v. State, 28 Tex. App. 323, 13 S. W. 38S; Jackson v. State, 30 Tex. App. 664, 18 S. W. 643; Roberts v. State, 30 Tex. App. 299, 17 S. W. 450; Miller v. State, 47 Tex. Cr. R. 331, 83 S. W. 393.

The question in this case did not arise, and was not discussed, decided, nor passed upon in Deon v. State, 3 Tex. App. 435, Garza v. State, 11 Tex. App. 410, and Leal v. State, 51 Tex. Cr. R. 425, 102 S. W. 414, cited and relied upon by Judge HARPER, nor the two additional cases of Kinley v. State, 29 Tex. App. 532, 16 S. W. 339, and Baker v. State, 54 Tex. Cr. R. 53, 111 S. W. 735, cited by Judge DAVIDSON. In neither of the above cases is it stated directly, nor by implication can it be inferred, that the appellant therein waived the filing of an information and agreed to try on the complaint only, as in this case. What they each, in effect, decide is that when the accused does not waive an information he cannot be legally tried on the complaint alone. I do not question that doctrine.

Taking said article 5, § 17, of our Constitution, quoted above, and said articles 35,449, and 22, and the whole trend of our procedure, they are to the effect that when an accused is charged by complaint with a misdemeanor, and it is filed in the county court for an original trial therein, ordinarily the county attorney must file an information thereon, hut an accused clearly can waive the information, and when he does, his trial without it is perfectly legal whatever the result. In my opinion the judgment should be affirmed.

However, in accordance with the opinion in, said companion case of Uee Ethridge, the judgment herein is reversed, and this cause remanded.


author: HARPER, J.

text:
    CASTILLO v. STATE.
    (No. 3361.)
    (Court of Criminal Appeals of Texas.
    Dec. 23, 1914.
    On Motion for Rehearing, Jan. 20, 1915.)
    1. Criminal Law (§ 780) — Instructions— Applicability- to Evidence — Accomplice.
    Evidence that a witness for the state had been indicted for the offense for which defendant was tried, but that the indictment had been dismissed, without any evidence that it had been dismissed for the purpose of securing his testimony, or that he was acting in any way with defendant in the commission of the offense, does not require the court to instruct the jury on the law relating to the testimony of an accomplice.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1859-1863; Dec. Dig. § 780.]
    2. Cbiminal Law (§ 824) — Instructions— Requests — Necessity.
    Where an accomplice testified for the state, it is error not to instruct as to such testimony, though no special charge was requested.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1996-2004; Dec. Dig. 824.]
    3.Homicide (§ 340) — Habmless Ereob — In-stbuctions.
    One convicted of murder and sentenced to 99 years’ imprisonment cannot complain that the court erroneously charged that, if defendant was convicted of murder in the first degree, he might be imprisoned any number of years not Less than five where the instructions also specifically charged the law as to murder in the second degree.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 715-717, 720; Dee. Dig. § 340.]
    On Motion for Rehearing.
    4. Homicide (§ 234) — Sufficiency of Evidence — Guilt as Principal.
    In a prosecution for murder, evidence held sufficient to warrant the jury in finding that defendant held deceased while another struck the fatal blow, so that defendant was guilty as principal.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 482-493; Dec. Dig. § 234.]
    5. Criminal Law (§ 792) — Instructions— “Principal” — Accessory.
    In a prosecution for homicide, an instruction that all persons who were acting together in the commission of the offense are “principals,” and that one who is present, and, knowing the unlawful intent, aids or encourages the one who actually committed the offense, is guilty as principal, but that he cannot be held responsible for the acts of the other, unless the jury believes beyond a reasonable doubt that he intentionally encouraged or .aided the commission of the offense, is correct.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1818-1820; Dec. Dig. § 792.

    For other definitions, see Words and Phrases, First and Second Series, Principal.]
    Appeal from District Court, ‘Comal Coun^; Frank S. Roberts, Judge.
    Sabas Castillo was convicted of murder, and his punishment assessed at 99 years’ imprisonment, and he appeals.
    Affirmed, and motion for rehearing overruled.
    Fred N. Cowen and Wm. H. Russell, both of San Antonio, for appellant. 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 convicted of murder, and his punishment assessed at 99 years’ confinement in the state penitentiary. This is a companion case to that of Sango Ybarro from Hays county, recently decided by this court. In this case the venue was changed from Hays to Comal county. The evidence would authorize a finding that either appellant or Sango Ybarro, while acting together, cut Deputy Sheriff John Davis in a manner to bring about his death; the evidence preponderating in favor of the theory that Ybarro struck the fatal blow, while appellant had hold of deceased’s hands.

Appellant, in his brief, earnestly insists that the evidence will not sustain the conviction. We have carefully reviewed the record, and are of the oiúnion that the evidence is ample to sustain the finding of the jury.

In the first bill of exceptions appellant complains that the court erred in refusing to give his special charge requesting the court to instruct the jury to bring in a verdict of not guilty. Being of the opinion that the evidence sustains the verdict, we hold that the court did not err in refusing to give this charge.

In the next bill it is complained that the court erred in failing to charge the- jury the law relating to accomplice testimony. No special charge was presented to the court embracing the law in regard to accomplice testimony, and the exception to the charge as given was very general. We gather, though, that his ground relates to the testimony of the witness Pedro Ortego. If he was an accomplice or accessory to the crime of killing Davis, of course the court should have so instructed the jury. The testimony of Ortego would not raise that issue, nor would any other testimony adduced on the trial, unless it be the fact that Ortego was at one time charged by indictment with the offense of murder in connection with the killing of Davis. If the mere fact that Ortego had been indicted, charged with the murder of Davis, makes him either an accomplice or an accessory, then the court erred in not submitting that issue to the jury. The case against Ortego liad been dismissed, but there is no evidence, not even a question asked, that would suggest or indicate that the indictment against him had been dismissed to obtain his testimony against appellant. There is no evidence that he was jointly indicted with appellant, or that the indictment against him charged that he and appellant were connected in the commission of the offense. The mere fact is shown that Ortego was at one time indicted, charged with the murder of Davis, which indictment was dismissed, the record merely showing:

“It was agreed by counsel for the state and the defendant that the witness Pedro Ortego was indicted on a charge of murder growing out -of the same offense for which the defendant, Sabas Castillo, is now being tried, and that said indictment against the said Pedro Ortego was dismissed.”

This agreement is not followed up with any evidence that appellant and Ortego were in any way connected in the commission of the ■offense, or that the charge against Ortego had been dismissed to obtain his testimony. No question is even asked that would suggest such a theory. Therefore we must presume that the facts would not raise even a suspicion that such was the true state of the case. If the evidence even in the remotest degree raisqd the issue that the indictment against Ortego had been dismissed to obtain his testimony against appellant, then the issue of whether or not he was an accomplice should have been submitted to the jury. But in the condition this record is in, and the evidence of Ortego excluding such an issue or theory, and no other evidence being offered other than the mere fact that an indictment had been returned, which upon investigation was ■dismissed, we cannot hold that the court erred in failing and refusing to submit the issue of whether or not Ortego was an accomplice.

In the next bill it is complained that the court erred in failing to instruct the jury that the punishment for murder in the first degree was death or imprisonment for life, and in instructing that the punishment for murder in the first degree was by death or confinement in the penitentiary for any number of years not less than five years. In refusing to approve the bill the court states:

“At the conclusion of the trial in this case, counsel for defendant requested the court to charge the old law. The charge was so prepared with ameliorated punishment as for murder in the first degree, under authority of case State v. Sango Ybarro, companion case of this one decided by Court of Criminal Appeals. I have no recollection of counsel reserving the above- bill of exceptions No. 3. Before the charge was read to the jury, and while in hands of counsel for inspection and objection, counsel did verbally call the attention of the court to omission of the words ‘first degree’ in paragraph defining murder in the first degree, which omission was supplied and the charge handed back to counsel for defendant for further objections or exceptions, and no other objections or exceptions were presented except those reduced to ■writing at the time and filed as a part of the record in the case, and the foregoing bill is therefore disallowed.”

The court in his charge defined murder in the first and second degree, and submitted the punishment for each degree under the old law, except that in murder in the first degree he authorized the jury to assess the punishment at death, or imprisonment for life, or any number of years not less than five years. The jury was specifically instructed the law as to murder in the second degree, and the punishment therefor, the law of manslaughter and the punishment therefor. In authorizing the jury to assess the ameliorated penalty now prescribed for murder in the first degree if they saw proper to do so, if the court erred, it was error of which appellant cannot be heard to complain, as the law of murder in the second degree was specifically given him in charge.

These are all the bills of exception in the record, and the other matters complained of in the motion for a new trial are not presented in a way we can consider them.

The judgment is affirmed.

On Motion for Behearing.

Appellant has filed a motion for rehearing in which he earnestly insists that the evidence is insufficient to show that appellant acted with Sango Ybarro in such a way as to constitute him a principal, and he insists that the evidence not only preponderates, as held by the court, in favor of the theory that Sango Ybarro struck the fatal blow, but that it excludes the idea that appellant did so. Admit as true that the evidence shows that Ybarro struck the fatal blow, yet we think it clearly authorized the jury to find that appellant was present and acted in such a way as to constitute him a principal. John Davis, the man who was killed, immediately after he was cut, told Jim Hughes: “These Mexicans have cut me all to pieces; they held me; and he had shot the man who cut him, ■and it was Sango Ybarro who cut him.” A witness for the state testified that appellant was the man who held John Davis when Ybarro cut him; that they were tussling, and he called to appellant to turn Davis loose; that appellant was holding Davis, when Ybar-ro said: “Now you will see you s-n of a b-h.” And the evidence discloses that it was at this time the fatal blow was struck. The appellant did not testify, and there was no evidence introduced by him that questioned the correctness of the above testimony. So the jury would be authorized to find under it that appellant and Davis were scuffling when the witness called to him to turn loose, but, instead of doing so, he held him while Ybarro inflicted the fatal wound.

The court instructed the jury:

“All persons are principals who are guilty of acting together in the commission of an offense. When an offense is actually committed by one person, but another is present, and, knowing the unlawful intent, aids, by acts, or encourages by words, or gestures, the one engaged in the commission of the unlawful act, he is a principal offender, and may be prosecuted and punished as such.
“X charge you that in this cause Sabas Castillo is alone upon trial; and in this connection you are further charged that the said Sabas Castillo cannot be held responsible for the acts of Sango Ybarro, unless you believe from the evidence, beyond a reasonable doubt, that he, Sabas Castillo, intentionally encouraged or aided Sango Ybarro, by words or acts, to cut the said John Davis, and unless you so believe, beyond a reasonable doubt, you will acquit the defendant.”

It is thus seen the court fairly submitted the issue to the jury, and the jury finds against him as it would be authorized to do under the evidence offered in behalf of the state.

We do not deem it necessary to discuss the other questions again, as they were all passed on in the original opinion.

The motion for rehearing is overruled.


author: DAVIDSON, J.

text:
    MENDOZA v. STATE.
    (No. 3383.)
    (Court of Criminal Appeals of Texas.
    Jan. 13, 1915.)
    Criminal Law (§ 1184) — Appeal — Correction of Sentence.
    Where the judgment and sentence both failed to place the punishment within the indeterminate sentence law, they will be reformed on appeal, so as to conform to that law.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig, §§ 3199, 3200; Dec. Dig. § 1184.]
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Bernardino Mendoza was convicted of a crime, 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 record is in the same condition as that in the recent case of Leonardo L. Vasquez v. State, 172 S. W. 225, except in this record there are no bills of exception. The case is before us without a statement of facts. The questions presented in the different motions in the record were disposed of adversely to appellant in the Vasquez Case, supra. The judgment and sentence both failed to place the punishment within the indeterminate sentence law.

The judgment and sentence will be reformed, so as to conform to the indeterminate sentence law, and the judgment affirmed.


text:
    CRUZ v. STATE.
    (No. 3384.)
    (Court of Criminal Appeals of Texas.
    Jan. 13, 1915.)
    1. Criminal Law (§ 1097*) — Statement of Facts — Re view .
    Where no statement of facts accompanies the record, the court cannot review the grounds alleged in the motion for a new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2862, 2864, 2926, 2934, 2938, 2939, 2941, 2942, 2947; Dec. Dig. § 1097.*]
    2. Criminal Law (§ 1099*) — Deprivation of Statement of Fact — Reversal.
    Where appellant’s affidavit showed that he presented to the county judge a statement of facts for his approval, that the county judge refused to approve it and failed to make out and file a statement of facts in the cause, so that it was not appellant’s fault that there was no statement of facts in the record, he was deprived of a statement of facts without negligence on his part, for which his conviction will be reversed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.*]
    Appeal from Frio County Court; Crawford Laxson, Judge.
    Pancho Cruz was convicted of aggravated assault, and he appeals.
    Reversed and remanded.
    C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of aggravated assault, and prosecutes this appeal.

No statement of facts accompanies this record; and, under such circumstances, we cannot review the grounds alleged in the motion for a new trial.

However, the affidavit of appellant’s counsel accompanies the record, and he swears that—

“he presented to the county judge a statement of facts, duly made out for his approval^ and. that the county judge refused to approve same, stating he did not care to sign it, and that the county judge has failed to make out and file a statement of facts in this cause; that it is in no way the fault of defendant or his counsel that a statement of facts does not accompany the record, but such fact is wholly due to the failure and refusal of the county judge to act in the premises.”

Under this showing it appears that appellant has been deprived of a statement of facts witliout negligence on his part, and under such circumstances he is entitled to a reversal of his case.

The judgment is reversed, and the cause remanded.


text:
    PERALES v. STATE.
    (No. 3376.)
    (Court of Criminal Appeals of Texas.
    Jan. 13, 1915.)
    Criminal Law (§ 1184*) — Sentence—Reformation.
    Where the sentence of the court below, instead of conforming to the indeterminate sentence act, assessed punishment for homicide at a fixed term of 25 years, it will be reformed, and judgment entered accordingly.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3199, 3200; Dec. Dig. § 1184.*]
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Pedro Perales was convicted of homicide, and he appeals.
    Reformed and affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant is one of the parties indicted for the murder of Deputy Sheriff Ortiz, of Dimmitt county. It is a companion case of that of Vasquez (172 S. W. 225), Serratto (171 S. W. 1133), Gonzales (171 S. W. 1146, 1149), and others heretofore decided by this court. The jury convicted him and assessed his punishment at 25 years in the penitentiary.

The record in this case and the questions in it are precisely the same as those in the Vasquez Case, 172 S. W. 225, affirmed by this court on December 23, 1914. The opinion of the court in that case decides every question that is raised and necessary to be decided in this. The two cases are precisely the same, only different defendants. We refer to the opinion in that ease, and adopt it as the opinion in this case.

The sentence of the court below, instead of conforming to our indeterminate sentence act, assesses the punishment at a fixed time of 25 years. The sentence of the lower court is therefore reformed, and the clerk of this court will enter the judgment accordingly.

Reformed and affirmed.


text:
    SUTTON v. STATE.
    (No. 3373.)
    (Court of Criminal Appeals of Texas.
    Jan. 13, 1915.)
    1. Criminal Daw (§ 600) — Continuance-Admissions to Prevent Continuance.
    It was not error to deny a continuance, where defendant’s counsel was permitted to make a statement to the jury as to what he claimed an absent witness would testify, and the prosecuting attorney admitted its truth, and defendant’s attorney then expressed himself as satisfied.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1342-1347, 1604; Dec. Dig. § 600.]
    2. Cbiminal Law (§ 406) — Evidence—Stipulation as to Facts.
    On a trial for testifying falsely before the grand jury, an agreement between defendant’s attorney and the district attorney, made in defendant’s presence and acquiesced in by him, that a witness who desired to go home would testify that defendant was sworn before the grand jury by the foreman, was properly admitted in evidence, especially where it was proven by other testimony that defendant was sworn and testified before the grand jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 785, 894-917, 920-927; Dec. Dig. § 406.] .
    3. Cbiminal Daw (§ 722) — Tbial—Argument of Counsel.
    On the trial of a person for testifying falsely before the grand jury that he had carnal in' tercourse with a girl claimed to have been seduced by another man, where there was evidence that defendant had visited at the home of the girl’s father, the statement of the district attorney in his argument that defendant voluntarily appeared before the grand jury after visiting the girl’s family and tried to ruin her was not improper.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1674; Dec. Dig. § 722.]
    Appeal from District Court, Hopkins County ; Wm. Pierson, Judge.
    Ed Sutton was convicted of perjury, and be appeals.
    Affirmed.
    W. P. Leach, of Sulphur Springs, for appellant. C. E. Lane, Asst. Atty. Gen., for the State. v

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

   HARPER, J.

Appellant was convicted of perjury, and his punishment assessed at two years’ confinement in the penitentiary.

The grand jury of Hopkins county was investigating a charge of seduction brought against one Jesse Creaey, wherein he was charged with seducing Miss Jennie Willis. Appellant appeared before said grand jury and testified that he had carnal knowledge of the young lady on two occasions, once on one Sunday night in June, 1912, on their way home from I-Iam Campbell’s, where they had been visiting, and that he had carnal intercourse with her in June, 1912, on their way home from a dance at Babe Wallace’s or Edgar Booth’s. Both of those statements are alleged to be false, and the testimony would authorize the jury to find, both that appellant did so testify before the grand jury, and that the statements were untrue.

In the first bill of exceptions it is contended that the court erred in overruling his application for a continuance. In the bill of exceptions it is shown that the prosecuting officer admitted that the witness would testify as alleged, and that such testimony was true. In approving the bill the court states:

“Upon the trial of the case the defendant was instructed to and did make a statement to the jury covering what he claimed the absent witness would testify, and the prosecuting attorney admitted its truth. The defendant’s attorney and the district attorney stated fully these things, and defendant’s attorney expressed himself as satisfied.’’

Under such circumstances the bill presents no error.

In the next bill it appears that L. L. Bowman was in attendance on court as a witness, and desired to go home, when the following agreement was entered into:

“It is agreed by and between the state and the defendant that L. L. Bowman, a witness for the state, will testify that Ed Sutton, the defendant in the above numbered and styled cause, was sworn before the grand jury of Hopkins county, Texas, by Ben Ramsey, the foreman of said grand jury, at the time and place mentioned in said indictment.
“[Signed] Mayo Neyland, District Attorney.
“W. P. Leach, Attorney for Deft.”

The defendant now complains that the court erred in permitting this agreement to be introduced in evidence. In approving the bill the court states:

“The agreement was made in the presence and hearing of defendant, and fully acquiesced in by defendant.”

As thus qualified the bill presents no error. In addition to this, it is proven by other testimony that appellant was sworn and testified before the grand jury as alleged.

Appellant complains that the district attorney in his argument said:

“This defendant voluntarily appeared before the grand jury, after- visiting the family of Willis and breaking bread with them, and tried to ruin this little girl.” ,

The record is replete with evidence that defendant was a visitor at the home of Mr. Willis, the father of the girl, and if there could be anything more damaging to her reputation than his testimony before the grand jury we cannot think of it at this time. The remarks were comments on the evidence introduced, and the hill presents no error.

The only other ground in the motion for a new trial alleges the insufficiency of the testimony. The testimony of Jennie Willis, who denied that appellant at any time ever had carnal knowledge of her, and the testimony of Mrs. 1-Iam Campbell, who testified that appellant and Jennie Willis were not at her house in June, 1912, and other testimony, fully supports the verdict, for it is shown, and not denied, that appellant did testify before the grand jury as alleged.

The judgment is affirmed.


author: PRENDERGAST, JP. J. DAVIDSON, J.

text:
    McADAMS v. STATE.
    (No. 3374.)
    (Court of Criminal Appeals of Texas.
    Jan. 13, 1915.)
    1. Laeceny (§ 30) — Complaint and Information — Description of Property — ‘ ‘Theft’ ’ — ‘ ‘Property. ’ ’
    Under Pen. Code 1911, art. 1329, defining “theft” as the fraudulent taking of corporeal personal property belonging to another, etc., art. 1337, providing that “property” as used in relation to the crime of theft includes money, etc., Code Cr. Proc. 1911, art. 458, providing that when it becomes necessary to describe property of any kind in an indictment, a general description thereof by name, kind, quality., number, and ownership, if known, shall be sufficient, and article 468, providing that in indictments tor theft of any coin or paper, current as money, it shall be sufficient to describe the property in general terms as “money,” etc., of or about a certain amount, a complaint and information charging that accused took from the possession of W. certain money of the value exceeding $1, was not insufficient because of the failure to allege that the stolen money was coins of the United States, or current as money of the United States.
    [Ed. Noto. — Por other cases, see Larceny, Cent. Dig. §§ 64-75, 99; Doe. Dig. § 30.

    Por other definitions, see Words and Phrases, Pirst and Second Series, Theft; Property.]
    2. Larceny (§ 31) — Complaint and Information — Value of Property.
    A complaint and information, charging accused with stealing money of the value exceeding $1, was not insufficient to support a conviction of petty theft, as failing to show that the offense was not a felony, because of the failure to allege that the money was of a value of less than $50, since the complaint did not charge a felony in the absence of an allegation that the money was of the value of $50, or over, and it could not have misled accused, especially where he made no objection in the court below.
    [Ed. Note. — Por other cases, see Larceny, Cent. Dig. §§ 76-80; Dec. Dig. § 31.]
    3. Criminal Law (§ 1099) — Appeal—Time for Piling- Statement of Pacts.
    On appeal from a conviction in a county court a statement of facts, filed more than 20 days after adjournment, was filed too late,, and would be stricken and not considered.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.]
    Davidson, J., dissenting.
    Appeal from Milam County Court; John Watson, Judge.
    George McAdams was convicted of petty theft, and he appeals.
    Affirmed.
    . Lyles & Lyles, of .Cameron, 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-

   PRENDERGAST, JP. J.

Appellant was convicted of petty theft, and his punishment assessed at a fine of $25 and one day in jail.

The complaint and information alleged that appellant, with other necessary allegations, did unlawfully and fraudulently take from the possession of Carrie Wyatt “certain money, the exact description and value of which is to affiant unknown, but of the value exceeding $1.” Appellant moved to quash said pleadings “because the description of the money is vague and uncertain and fails to inform him what he is called upon to' answer, and the complaint does not charge that the money alleged to have been stolen was coins of the United States, or that the said stolen money was current as money of the United States, or any other country.” The statute (article 1329, P. C.) defines theft as the fraudulent taking of corporeal personal property belonging to another, etc. It says (article 1337) property in. relation to-the crime of theft includes money. . The Code originally prescribed (Code Cr. Proc. art. 458) that when it becomes necessary to describe property of any kind in an indictment or information, a general description of the same, by name, kind, etc., if known shall be sufficient. Under the earlier decisions of the Supreme, and of this court, it was held that the pleading was insufficient if it merely alleged the theft of money, and required that some description thereof was necessary. For the very purpose of avoiding the effect of these decisions, the Legislature enacted, among others, article 468, C. C. P., which says in indictments or informations for theft of any coin or paper, current as money, it shall be sufficient to describe the property in general terms as “money” of or about a certain amount. Since then, while the decisions have not always marked this additional provision, they are to the effect that it is only necessary, in indictments or informations for thefts of money, to allege that the property stolen was money. Green v. State, 28 Tex. App. 493, 13 S. W. 784; Taylor v. State, 29 Tex. App. 466, 16 S. W. 302; Wofford v. State, 29 Tex. App. 536, 16 S. W. 635, and many other decisions. See, also, Sims v. State, 64 Tex. Or. R. 442, 142 S. W. 572, and Ferrell v. State, 152 S. W. 901, and cases cited and reviewed in those decisions. We said in Sims v. State, supra:

“It has many times been held, and may be stated to be the law of this state, that in this character of case an allegation that the stolen property was ‘money’ is held to mean money of the United States. Kirk v. State, 35 Tex. Or. R. 224 [32 S. W. 1045]; Menear v. State, 30 Tex. App. 476 [17 S. W. 1082]; Burries v. State, 36 Tex. Cr. R. 13 [35 S. W. 164], And that the court will take judicial knowledge -of the value of United States money. Gibson v. State, 100 S. W. 776; Sowles v. State, 52 Tex. Cr. R. 17 [105 S. W. 178]; Nelson v. State, 35 Tex. Cr. R. 205 [32 S. W. 900]; and Menear v. State, supra.”

In our opinion the pleading describing the money in this case was sufficient, and the lower court correctly overruled appellant’s motion to quash.

For the first time appellant, in his brief in this court only, contends that the said pleading is insufficient, in that the alleged value of the stolen money, shown in the quotation above that the exact value is unknown, but “exceeding one dollar,” does not show it is not a felony. Appellant thereupon contends that the pleading does not exclude that it is a felony because the stolen money might equal or exceed the value' of $50. We think that by no reasonable construction of the language could it be contended that the pleading in this case charges a felony. In order to charge a felony it would have been necessary for the pleading to allege that the money stolen was of the value of $50 or over. The language used, we think, could not be so construed to mislead, and evidently it did not mislead, appellant because he made no such objection in the court below and for the first time, only, makes the point by his brief filed in this court. Evidently he understood, as we do, that the language used indicated sufficiently, clearly, and distinctly that, while the amount and value of the stolen money was not exactly known, yet the language used would indicate that its value was of about, but a little more than, $1, and in no event as much as $50.

This case was tried at the October term of the court, which adjourned October 24, 1914. What purports to be a statement of facts herein was not filed until December 3, 1914, more than 20 days after adjournment. The Assistant Attorney General’s motion to strike out and not consider the purported statement of facts because filed too late is therefore well taken, and it is struck out. In the absence of a statement of facts, no other question is raised which we can review.

The judgment is therefore affirmed.

DAVIDSON, J.

(dissenting). Appellant was convicted of misdemeanor theft under an information charging him with the “theft of certain money, the exact description and value of which is to affiant unknown, but of the value exceeding $1.” Theft is of two grades: If the value of the property is $50 or above, it is felonious; if under that amount, it is a misdemeanor. This information charges him with the theft of property exceeding $1 in value. The excess of the value above $1 is not stated, and no reason given why it is not stated. A value in excess of $1 may have gone, far in excess of $50, or it may have been less than $50. This information or complaint does not undertake to say whether it is a felony or misdemeanor. It is too uncertain, in the face of the statute which draws the line of demarcation, as the statute of theft does as to value. The appellant should have been notified by the complaint and pleadings against him that he was to answer for a felony or a misdemeanor. The reasoning in the opinion affirming this case does not meet legal requirements. Of course the defendant knew he committed the theft of the property that he obtained if he committed the theft; he would know that whether he was charged with it or not. It is absolutely essential, in the indictment or information or complaint, to charge the party with the offense for which the conviction will be sought. The pleadings in this case charge theft generally, without specifying whether it is a felony or a misdemeanor. The allegations, where the life or liberty of a citizen is desired at the hands of a criminal prosecution, must be specific and charge the offense for which the conviction is sought. This court nor the trial court would have any right to supply the amount or value of the property. The pleadings must do this. This was not done, and, in my judgment, the pleading is wholly insufficient. I, therefore, most respectfully enter my dissent.