text:
    McGREGOR v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 5, 1913.)
    1. Criminal Law (§ 116) — Venue—Pleading.
    Code Cr. Proc. 1911, art. 630, requiring that a plea of not guilty shall be entered before change of venue is ordered, is directory only.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 236; Dec. Dig. § 116.]
    2. Criminal Law (§ 914) — Motion for New Trial —Time of Raising Objection — Change of Venue.
    Where accused pleaded not guilty in the court to which the venue was changed instead of that in which the indictment was returned, as required by Code Gr. Proc. 1911, art. 630, but no bill of exceptions was taken to the omission nor the Question raised in the trial court other than by an amended motion for new trial, the court did not err in denying the motion.
    [Ed. Note. — For other cases, see Criminal Law. Cent. Dig. §§ 2146-2151; Dec. Dig. § 914.]
    3. Criminal Law (§ 730) — Trial —Prosecuting Attorney — Misconduct.
    Improper statements by the district attorney in argument was not ground for reversal of a conviction, where the court in each instance expressly instructed the jury not to consider the remarks.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1693; Dec. Dig. § 730.]
    4. Homicide (§ 300) — Adequate Cause — Insulting Language.
    Under Pen. Code 1911, arts. 1131,1132, providing that insulting words shall not constitute adequate cause, but that an assault and battery causing pain or bloodshed is adequate cause, an instruction, that an assault and battery with intent to injure or inflict bodily pain, or grossly insulting language constituted adequate -cause, was- erroneous.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    5. Homicide (§ 295) — Instructions — Adequate Cause — Insulting Words.
    Insulting words used by deceased concerning defendant’s wife and lady companion, whom defendant was accompanying at the time, were not ground for an instruction on adequate cause, where the evidence as a whole and defendant’s own testimony showed that the difficulty out of which the killing occurred was not caused by such language, even if used by deceased.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 606-609; Dec. Dig. § 295.]
    6. Homicide (§ 327) — Appeal—Record—Instructions.
    The court’s refusal to give a requested charge on self-defense would not be reviewed, where it was nowhere copied in the record or bill.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 695; Dec. Dig. § 327.]
    7. Homicide (§ 300) — Self-Defense — Instruction.
    An instruction that, if the jury believed from the evidence beyond a reasonable doubt that defendant either by words or acts produced the condition and brought on the difficulty in and by which it became necessary to take decedent’s life, then he could not justify himself on the ground of self-defense, was defective for failure to require that the words or acts of accused provoking the difficulty were with the apparent intention of killing or doing serious bodily harm to deceased.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    Appeal from District Court, San Patricio County; F. G. Chambliss, Judge.
    John McGregor was convicted of murder in the - second degree, and he appeals.
    Reversed and remanded.
    John A. Pope, of Corpus Christi, and Jones & Childers, of Sinton, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, P. J.

Appellant was indicted for murder of • Tom Priour by the j grand jury of Nueces county alleged to have been committed in that county. Afterwards the venue was changed from that to San Patricio county, where appellant was tried, convicted, of murder in the second degree, and his punishment fixed at five years’ confinement in the penitentiary.

For the first time appellant, in his amended motion for new trial, urges that the case should be reversed because the record does not disclose that appellant was arraigned in Nueces county before the change of venue. The statute, in effect, requires that the plea of not guilty shall be entered before a change of venue (article 630, C. C. P.); but this article has uniformly been construed to be directory only. Besides this, article 938, C. P. P., expressly provides that this court shall presume in all cases that the defendant was arraigned, unless such matter was made an issue in the court below and it affirmatively appears to the contrary by a bill of exceptions properly signed and allowed by the judge of the court below. No such bill was taken, nor question raised in the court below, other than by such amended motion for new trial. The court did not err in refusing a new trial on that ground. The record in this case distinctly shows that the appellant was properly arraigned and pleaded not guilty before his trial in San Patricio county. This is all that was necessary.

Appellant has a bill to certain remarks of the district attorney in argument before the jury. In each instance the court expressly told the jury not to consider such remarks. It may be that some expressions of the district attorney complained of were improper. It is unnecessary to pass upon this question. Prosecuting officers certainly should stay within the record in their arguments before the jury. For a flagrant violation of such duty this court has been compelled- in some instances to reverse cases. Doubtless, on another trial the prosecuting officer will so argue the case as not to present any such question again.

The court in this case gave a charge on manslaughter. In one paragraph he told the jury: “The following are deemed adequate causes: An assault and battery with intent to injure or inflict bodily pain, or grossly insulting language." This charge is not the law. Article 1131, P. C., expressly states that insulting words is not adequate cause, and article 1132 expressly states that an assault and battery by the deceased, causing pain or bloodshed, is an adequate cause. But as the charge given, above quoted, was more favorable to appellant than the law authorized, he cannot complain thereof. In another trial of this case, the court should not give the charge above quoted; but, if manslaughter is raised, should charge in accordance with the statiite.

Appellant complains that the court should have given his special instruction No. 1. This instruction is nowhere copied in the record, nor iri the bill of exceptions complaining of the refusal of it. From the bill on the subject, however, we take it that it was on the subject of insulting words of the deceased towards appellant’s wife and her lady companion whom appellant was accompanying at the time. Some insulting words may. have been used by deceased concerning them, or in their presence. Whether or not such words were used by the deceased is a disputed question. .Even if the evidence was sufficient to establish that they were used by deceased, adequate cause from that source clearly passed out of the case, and no charge should have been given submitting that question to the jury; for the evidence as a whole, and the testimony of appellant himself, exclude expressly that the difficulty out of which the killing occurred was caused by such language even if used by deceased.

By another bill appellant complains that his requested charge No. 2 should have been given, on the subject of self-defense. It is nowhere copied in the record or bill, and we have no way of knowing what it was, and for that reason cannot pass upon that charge. The court gave a charge on self-defense as favorable as the evidence or law justified.

However, after completing the charge on self-defense, the court immediately followed it in a separate paragraph with this charge: “The jury are further instructed that if you believe from the evidence beyond a reasonable doubt that the defendant either by words or acts produced the condition and brought on the difficulty, in and by which it became necessary to take the life of Tom Priour, then and in that case he cannot justify himself on the ground of self-defense.” Complaint is made on various grounds to this quoted charge. The evidence does not make it clear that any charge at all on the subject of provoking the difficulty by appellant should have been given. However, we do not pass upon the sufficiency of the evidence on that point. Clearly self-defense was raised. The statute (article 1138, P. C.) is: “Though a homicide may take place under circumstances showing no deliberation, yet, if the person guilty thereof provoked a contest with the apparent intention of killing, or doing serious bodily' injury to the deceased, the offense does not come within the definition of manslaughter,” but may be murder. In the case of McCandless v. State, 42 Tex. Cr. R. 61 et seq., 57 S. W. 672, a full discussion of this character of charge and 'the occasion on the trial of the ease when it should or should not be given is found and the substance of a proper charge when necessary is given. See, also, White’s Ann. P. C. §§ 1211, 1212, and 1181, for other eases and a further discussion by Judge White on this subject. The charge above complained of is clearly defective in that it does not require that the words or act of the appellant provoking the difficulty were “with the apparent intention of killing or doing serious bodily injury to the deceased.” In this ease the charge is fatally defective, at least on this point. The converse of the proposition should also have been given if the evidence justified the giving of such a charge at all. White’s Ann. P. C. § 1212. For the error in giving this charge, as given, without the proper and necessary elements therein, this ease must be reversed.

The state introduced the dying declaration of the deceased. The appellant complains that the court refused to give his charge of what consideration the jury should give this dying declaration. The charge is not in the record, nor does the bill disclose enough for us to specifically pass upon this refused charge. We see nothing in the confession or record that would call for a charge on this subject at all. It occurs to us that a charge thereon would be on the weight of the evidence and singling out some particular evidence which should not be done against the appellant, nor against the state.

Nothing else that appellant assigns shows any reversible error or needs any discussion. The ground of newly discovered evidence cannot, of course, arise on another trial.

The judgment is reversed and the cause remanded.


source: Caselaw Access Project

author: DAVIDSON, J.

license: Public Domain

text:
    ANSELIN v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 12, 1913.)
    1. Criminal Law (§ 701) — Trial — Argument — Bight or Accused.
    Under Const.- art. 1, § 10, providing that accused shall have the right of being- heard by himself or counsel, accused has an absolute right to be so heard unless he waives it, so that it was reversible error to refuse the request of accused’s counsel to be heard in argument on the law and facts, made immediately after the evidence was in, and to render judgment of conviction without argument.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1496-1505; Dec. Dig. § 701.]
    2. Highways (§ 151) — Offenses — Failure to Work Roads.
    If accused did not make his home in a particular road precinct and was a transient person working in boats on the bay most of the time, he could not be convicted of failing to work the public roads in the district; the state being required to show that he was subject to road duty and had lived within the boundaries of the road precinct long enough to make him a road hand.
    [Ed. Note. — For other cases, see Highways, Cent. Dig. §§ 407-416; Dec. Dig. § 151.]
    Appeal from Chambers County Court; R. J. McMurrey, Judge.
    John Anselin was convicted for failing to work the public road, and appealed.
    Reversed and remanded.
    A. L. Reason, of Anahuac, for appellant. O. E. Pane, 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

   DAVIDSON, J.

Appellant was convicted by the court, having waived a jury, for failing to work a public road in road precinct No. 14. When the testimony was finished, the court immediately announced his conclusion of guilt. Appellant’s counsel immediately demanded the right to be heard in argument on the case both as to the law and facts. This the court declined to hear, because he said he had announced his conclusion. The bill of exceptions makes it apparent that the whole thing immediately followed the close of the testimony, and appellant was in time in his demand; he had not waived it but was urgently insisting upon being heard. The Constitution, art. 1, § 10, expressly provides that the accused shall have the right of being heard by himself or counsel, or both. The courts, in passing upon this question, say this is a valuable right of which the appellant can under no circumstances be deprived. Of course he can waive it, but he has a right to be heard unless he waives it. In support of this we will cite several cases: Roe v. State, 25 Tex. App. 33, 8 S. W. 463; Tooke v. State, 23 Tex. App. 10, 3 S. W. 782; Reeves v. State, 34 Tex. Cr. R. 483, 31 S. W. 382; Spangler v. State, 42 Tex. Cr. R. 233, 61 S. W. 314. If it were necessary to cite authorities to sustain the plainly reserved right in the Constitution, these authorities are sufficient, but it is the rule, as shown in the discussion of these cases by the writers of the opinions, where many of the authorities are collated, as well as by the Constitution.

There is another question, it occurs to us, which ought to have been sustained by the court, or rather that his judgment is erroneous in finding appellant guilty. Appellant did not work the road, and indirectly he received a summons to work it, but he did not live in the road precinct if the testimony of the witnesses is to be credited. The road overseer sent a written summons to him, which was not signed as road overseer, or in any way indicating it to be official, but still this summons reached the appellant at the residence of a man named Watson. It was sent there for the purpose of summoning appellant to work upon the road on the- theory and under the belief that that was his home, and under that view of it, if it was true, appellant lived within the bounds of the road district. But Mr. Watson, as did another Watson, testified that appellant did not make his home at that place; that he was in the employ of another man and working with and in boats on the bay most of the time; that he did not even keep his clothing or washing or anything of that sort at Watson’s. In fact, in addition to this, the state’s evidence shows that he was a transient person, and it may be stated here that Watson testified for the state (at least one of the Watsons did), and another Watson testified for the defendant. Their testimony was practically identical. Under this state of facts we do not believe appellant should be convicted. Certainly the state would have to show that he was subject to road duty and that he lived, within the contemplation of the statute, within the bounds of the road precinct a sufficient length of time to constitute him a road hand.

The judgment is reversed, and the cause is remanded.


text:
    GRAHAM v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 12, 1913.)
    1.Criminal Daw (§ 265) — Pleading oe Accused — Time oe Filing.
    Under the statute, an accused is entitled to two days within which to prepare and file his pleading's after the information is filed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 616, 617; Dec. Dig. § 265.]
    2. Criminal Daw (§ 589) — Continuance-Grounds.
    Where an application for continuance showed that accused was not mentally or physically able to be tried, and could not be of any assistance to his counsel at trial because of his mental condition, and probably could not be placed upon the witness stand, a continuance should have been granted.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 1315, 1319; Dec. Dig. § 589.]
    3. Criminal Daw (§ 1086) — Aepeau-Record —Recital oe Proceedings.
    The record should clearly show by whom the prosecution was conducted, and should explain and make clear the doubt as to the exact nature of the proceedings, where the information was signed by a private prosecutor and the state appeared by special county attorney, but the record seemed to show that the county attorney conducted the case in part, and officially signed the statement of facts.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 2736-2769, 2770, 2772, 2794; Dec. Dig. § 1086.]
    4.Criminal Law (§ 1110) — Appeal—Bills • of Exception — Qualifications by Court.
    The trial judge could not qualify bills of exception by stating facts dehors the record; it being necessary that he testify to such facts like any other witness.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2903-2917, 2919; Dec. Dig. § 1110.]
    5.Assault and Battery (§ 80) — Issues and Proof.
    Where the information charged the accused with whipping his wife with a broomstick, dipper, and with his fist, and the state elected to try accused for an assault committed on a particular date, in a particular manner, it must prove that the assault was committed on that date by the means alleged.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. § 126; Dec. Dig. § 80.]

      6. Cbiminad Law (§ 220) — Complaint.
    If a complaint is attacked as not officially signed by the officer taking it, etc., so as to raise a serious question of its legality on that ground, it is the better and safer practice to file a new, unquestioned complaint, or other papers, as the case may be, to prevent incumbering the record with numerous papers, the validity of which is uncontroverted.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 456; Dec. Dig. § 220.]
    Appeal from Collingsworth County Court; R. H. Cocke, Jr., Judge.
    Ralph Graham was convicted of aggravated assault and battery upon his wife, and appealed.
    Reversed and remanded.
    Templeton & Templeton, of Wellington, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

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

   DAVIDSON, J.

Appellant was convicted of aggravated assault and battery upon his wife.

The complaint and information both charge that the assault was committed with a broomstick, a dipper, and with his fist. This complaint was filed on the 11th of June, 1913. The information was filed on June 16th. The trial was had on June 16th. When the information was filed appellant insisted upon having his two days authorized by the statute in which to prepare and file written pleadings. This was overruled by the court, and exception reserved. This was error. The authorities sustain appellant’s proposition that he is entitled to two days in which to prepare and file his written pleadings after the filing of the information. Evans v. State, 36 Tex. Cr. R. 32, 35 S. W. 169; Whitesides v. State, 44 Tex. Cr. R. 410, 71 S. W. 969; Holden v. State, 44 Tex. Cr. R. 383, 71 S. W. 600; McFadin v. State, 44 Tex. Cr. R. 471, 72 S. W. 172; Lightfoot v. State, 77 S. W. 793; Johnson v. State, 49 S. W. 619; King v. State, 56 S. W. 926. The statute guarantees this right.

When the case was called for trial appellant also filed his application for a continuance for the testimony of his father. It is unnecessary to discuss that matter, as the presence of the absent witness or his testimony can be obtained upon another trial.

There was another application filed for continuance by R. L. Templeton. This application sets up the fact that defendant was neither physically nor mentally able to undergo the ordeal of his trial. The statement of facts shows he was in such condition that he was not, and could not perhaps be, placed upon the witness stand to testify. The wife of appellant was the only witness introduced during the trial. She testified to the facts of the assault, and stated that he was crazy, and that she had always regarded him as insane from the time that she married him, and so regarded him at the time of the trial. While this language of the witness may be a little strong, yet it tends strongly to support the application signed by the affiant, Templeton, that appellant was not in a condition to be tried, and he could not be of any assistance to his counsel during the trial. Taking these two applications for a continuance together, and especially the latter one, we are of opinion the court should not have tried appellant at the time that he was tried.

The information was not signed by the county attorney, but was signed by private prosecutor in the case. It seems he was employed by the people of the community to prosecute. There is a recitation in the judgment to this effect: “The state of Texas appeared by J. L. Lackey as special county attorney, who was appointed by the court on account of the absence of the county attorney, and the defendant appeared in person and announced not ready for trial, and asking two full days in which to file motion pleadings,” etc. An inspection of the trial of the ease seems to indicate that the county attorney, Small, was present and conducted the case; at least, he contested, over his official signature, matters set up by defendant’s counsel, and . signs the statement of facts officially. Upon another trial this matter should be corrected, and the record not left in the condition of controverting matters of this sort when there is no occasion for it, but where controversies of this sort do occur, the record ought to make it plainly to appear why such things do occur.

There are several bills of exception to the introduction of testimony. The judge qualifies these bills, which were not accepted by counsel for appellant. In the qualification to one of the bills the court states a lot of facts, or what purports to be facts, that are dehors the record, and about which he was not authorized to qualify the bills of exception, because they were independent statements, and if these were facts, and were thought necessary to be stated in the connection in which they are used, he would have to testify like any other witness upon the controverted points. This question has been before the court on several occasions, and Judge Ramsey wrote an elaborate opinion upon this phase of the law in Leonard v. State, 53 Tex. Cr. R. 187, 109 S. W. 149.

It will be recollected that the information charges appellant with whipping his wife with a broomstick, dipper, and with his fist. On the occasion upon which one of the bills of exception states the prosecution elected to try appellant he did not strike her with a broomstick, nor with a dipper. He struck her in another trouble they had with a broomstick, but that was in March, and on another occasion with a dipper, but not upon the occasion which the bill of exceptions states the prosecution elected to try appellant. It was necessary under the allegations to prove, under the election by the state, that the assault was committed on the particular date by some of tbe means alleged. Evidence of previous occasions would not sustain nor be permissible, although on those previous occasions he may have used a broomstick; or dipper. Wherever the state elects the occasion as a basis for conviction, the testimony must correspond to that election, and must fit that occasion; other matters will not be permissible. There is also shown by a bill of exceptions that on the 11th of June, which seems to have been the occasion selected by the state, he struck his wife with a razor strop. This could not be the basis of conviction, because it was not alleged in the complaint or information. We want to say that under this information, and the election by the state under this information, when the state confines its investigation or its basis for conviction to the date alleged, it will be limited in investigation to that particular transaction. This matter has been frequently before the court. One of the earlier cases is Lunn v. State, 44 Tex. 85. That case has been followed in quite a number of cases, even down to date.

There is a question raised over which a contest arose that the complaint was not signed officially by the officer, if an officer, who took it, and the seal of his office was not attached. He purports to have signed it as county clerk. So we have the complaint and information both questioned, and testimony in regard to it and matters left in doubt. ‘ Instead of having these matters to arise and complicate records with them, if serious questions occur along these lines it is safest and best to prevent cumbersome records by filing new and unquestioned complaint and information, or uncontroverted papers wherever that is permissible. Controversies of that sort only tend to incumber records without any good to be accomplished. Filing corrected papers in ease of such controversies avoids such complications.

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


text:
    BALLARD v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 5, 1913.)
    1. Homicide (§ 166) — Evidence—Relevancy — Motive.
    In a prosecution for a homicide, growing out of the alleged improper intimacy of deceased with defendant’s wife, the fact that defendant, who had been married to his wife six or seven years, had lived with her two years before he had married her, was inadmissible under the circumstances.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 320-331; Dec. Dig. § 166.]
    2. Homicide (§ 166) — Evidence—Relevancy— Collateral Issue.
    In a prosecution for murder growing out of the undue intimacy of deceased with the wife of accused, evidence as to whether defendant had had trouble with a third person, whom he also accused of having been unduly intimate with his wife before he married her, was collateral to the homicide and inadmissible.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 320-331; Dec. Dig. § 166.]
    3. Witnesses (§ 383) — Cross-Examination— Collateral Matters — Contradiction.
    It is not proper to allow a witness to be cross-examined as to matters collateral and immaterial to the issue merely for the purpose of contradicting him by other evidence; but, where the witness is so cross-examined, his answer cannot be subsequently contradicted by the examining party.
    [Ed. Note. — For other cases, see Witnesses Cent. Dig. § 1224; Dec. Dig. § 383.]
    4. Homicide (§ 166) — Evidence—Relevancy — Prior Conduct oe Defendant.
    In a prosecution for a homicide growing out of the alleged undue intimacy of deceased with defendant’s wife, evidence as to whether defendant had lived with his wife before he had married her, whether he had given her several beatings about other men before he had married her, and quarreled with other men about her,, and whether he had not married her to avoid a prosecution because he had struck and whipped her, as to whether while living with his wife he had not intimately associated with the wife of another, were irrelevant and inadmissible.
    [Ed. Note. — For other cases, see Homicide Cent. Dig. §§ 320-331; Dec. Dig. § 166.]'
    5. Witnesses (§ 340) — Imeeachment—Char-acter oe Witnesses.
    Proof that defendant or any other witness in the case associated with lewd women or kept bad company is not admissible for the purpose of impeachment.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1116, 1117, 1119, 1121; Dec. Dig. § 340.]
    6. Criminal Law (§ 1170½) — Impeachment oe Material Witness — Immaterial Matter.
    The impeachment of a material witness on an immaterial matter is reversible error, because discrediting the witness upon an immaterial issue is calculated to make the jury believe that he may have testified falsely in regard to other matters which were material.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3129-3135; Dec. Dig. § 1170½.]
    7. Witnesses (§ 383) — Cross-examination-Collateral Matters.
    To the rule that it is not proper to cross-examine a witness as to collateral and immaterial matters for the purpose of contradicting him by other evidence, matters that pertain to motive, interest, or animus of a witness are exceptions.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1224; Dec. Dig. § 383.]
    8. Witnesses (§§ 340, 345) — Impeachment— Accusation or Conviction oe Crime.
    Mere accusations or evidence of a particular misconduct are not admissible to affect the credibility of a witness, but as to other offenses he can be impeached only by showing that he has been legally charged with a felony or with a misdemeanor imputing moral and legal turpitude.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §⅜ 1116, 1117, 1119, 1121,1126-1128; Dec. Dig. §§ 340, 345.]
    9. Criminal Law (§ 761) — Instructions— Assumption oe Facts.
    In a prosecution for homicide growing out of the alleged undue intimacy of deceased with defendant’s wife, where the testimony only raised a suspicion as to defendant’s alleged intimacy with the wife of another, it was error for the court in limiting impeaching testimony to assume that defendant was guilty in such matter.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1731, 1738, 1754-1764, 1771, 1853; Dec. Dig. § 761.]
    10. Criminal Law (§§ 763, 764) — 'Trial-Province of Court— Instruction on Weight of Evidence.
    It is error to single out one or more facts’ in the evidence and limit motive or interest thereby, as that would be a charge upon the weight of the evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1731-1748, 1752,1768,1770; Dec. Dig. §§ 763, 764.]
    11. Homicide (§ 800) — Trlml—Instructions —Conformity to Issues and Evidence.
    In a prosecution for homicide, where defendant’s theory of self-defense was based upon the appearance of danger from deceased when he jumped over a fence in the lane where defendant was and started toward him and made a movement toward his pocket, the question of relative strength of the parties was not in the case, and an instruction giving that to the consideration of the jury was reversible error.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    12. Homicide (§ 300) — Trial—Instructions —Conformity to Issues and Evidence.
    In a prosecution for homicide, where deceased had made no attack upon the defendant, and the theory of self-defense was based only upon apparent danger to defendant, a charge as to •defendant’s rights upon an attack by deceased was erroneous as submitting an issue not developed by the evidence.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.
    Dan Ballard was convicted of manslaughter, and he appeals.
    Reversed and remanded.
    V. E. Middlebrook, of Nacogdoches, for appellant. C. E. Lane, Asst, Atty. Gen., for the State.

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

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

   DAVIDSON, J.

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

Briefly stated, the evidence shows that this killing grew out of the fact that deceased, George Miller, had been criminally intimate with appellant’s wife. When appellant was first informed of the fact or learned of it, on the first opportunity he mentioned the matter to deceased, and was convinced at that time that the report was false. His wife denied it, as did Miller. Subsequently, however, other information came to him that they were criminally intimate, and this was placed beyond any question. The details of this are unnecessary,. as it is a fact about which there was no question. Appellant met or went to see Miller about the matter. A' difficulty came up between them. The deceased, Miller, was approaching defendant in a threatening attitude as if he intended to use a weapon, though he did not draw one; appellant shot and killed Miller. This was on the first meeting, and the evidence sufficiently discloses appellant went to see Miller with reference to it and talk the matter over with him. Upon appellant going to the deceased with reference to the matter, and deceased being told by appellant that he believed the intimate relations to be true, deceased got over the wire fence that separated them into the lane where appellant was and advanced on appellant, telling him if he believed it it was up to him, and at the same time putting his hand in or towards his pocket. When deceased got over the fence into the lane where appellant was, and when the parties were in the attitude above mentioned, appellant shot several times.

Having been convicted of manslaughter, both degrees of murder were thereby eliminated. The questions to be discussed arise from the introduction of evidence and the charge of the court, especially that part of the charge which relates to self-defense. The record is voluminous, but it is thought unnecessary to go into details.

1. The application for continuance is not discussed, because the case will be reversed upon other matters, and the absent witnesses may be procured upon another trial.

2. The court permitted the state’s counsel, over his objection, to require appellant, while testifying in his own behalf, to testify that he had lived and cohabited with his wife, as a wife, before he had married her. The statement of facts is referred to by the court in qualifying the bill of exceptions. An examination of the evidence in this connection will show that appellant had illicit relations with his wife for about two years before their marriage, and that at the time of the killing she had been his wife for six or seven years. We are of opinion this testimony was not admissible. It is not illicit relations of the husband with the woman that he subsequently marries that relates to adequate cause; and, besides, this was a matter that should not have been injected into the trial of the case. It had occurred six or seven years prior to the homicide; he had married the woman and taken upon himself the duties of husband and protector. Under such circumstances, we believe this testimony should not have been permitted to go to the jury.

3. Another bill of exceptions recites that the state’s counsel was permitted to ask appellant if he had not had trouble with Sol Johnson in San Augustine about his wife, accusing Sol Johnson of being intimate with her before he married her. The witness answered he had not had such trouble with Sol Johnson. After the witness had so testified, Sol Johnson was called by the district attorney to the witness stand, and he elicited from him the fact that he and appellant did have such trouble. Various objections were urged to this testimony. We think this testimony was not admissible. This was a collateral matter occurring before the marriage between defendant and his wife, and was in no way connected with this homicide. Sol Johnson had nothing to do with the matters occurring between appellant and Miller, and it injected into the case a collateral issue, we suppose, for the purpose of impeaching the witness upon that collateral matter. In the first place, this testimony was not admissible, and, in the second place, it should have rested with defendant's answer.

The authorities are clear and apparently all one way that it is not proper to allow a witness to be cross-examined as to any matter which is collateral and not material to the issue merely for the purpose of contradicting him by other evidence. It seems to be equally clear that, where the witness is cross-examined on a matter collateral to the issue, his answer cannot be subsequently contradicted by the party putting the question. The authorities sustaining this will be found collated in Mr. Branch’s work on Criminal Law, § 867.

4. Another bill recites that over appellant’s objection the court permitted the district attorney to ask him, while on the witness stand testifying in his own behalf, if his wife lived in the house with Nellie Love before he married her; how many times did Nellie Love come there and catch him in bed with his wife before he married her; if it was not a fact that he gave his wife several beatings about other men before he married her, and if it was not a fact that he ran her out of the yard with a pistol and beat her about other men; and' how many times did he have a row with Andrew Carr about his wife before he married her; and if it was not a fact that he had a row with Sol Johnson about his wife before he married her; and if it was not a fact that Sol Johnson informed appellant that she was a “free woman.” He also was asked how he came to live with her before he married her, and if it was not a fact he married her to keep from being prosecuted because he hit her with a pistol and whipped her. He was also asked if it was not a fact that during the time he was living with his wife he was not intimately associated with Cal McCord’s wife, and if he was not intimate with her during that time. These questions were required to be answered and entered into the case at some length. All these matters upon another trial should be excluded. It would make no difference, so far as the trouble between deceased and the defendant, and this ease under the facts as it occurred, that appellant had associated with other women or had whipped his wife before their marriage or lived illicitly with her before their' marriage. It was several years before this occurrence and could not enter into this case under the circumstances. The authorities before cited, we think, are sufficient.

5. Another bill recites that the state put the witness Susan McCord on the stand and asked her the following question: “Now,. I want to ask you, if it is not a fact that,, just before George Miller was killed, say for several months before, and up close to the time he was killed, if Dan Ballard did not frequently come to your house, in the daytime, when your husband would be away from home, and you and him would go into the house, and shut the doors, and pull down the windows.” This was denied by Susan McCord. The state was then permitted to call S. J. Wilkerson to impeach Susan Mc-Cord on that issue, and directly also to impeach appellant with reference to the same matters. Other bills of exception bring to light the same matter and are substantially the same matter. This testimony was not admissible. Proof that appellant or any other witness in the case associated with lewd women or kept bad company is not admissible for the purpose of impeachment. Holsey v. State, 24 Tex. App. 42, 5 S. W. 523; Arnold v. State, 28 Tex. App. 480, 13 S. W. 774; Hudson v. State, 41 Tex. Cr. R. 453, 55 S. W. 492, 96 Am. St. Rep. 789; Reed v. State, 42 Tex. Cr. R. 573, 61 S. W. 925; Neill v. State, 49 Tex. Cr. R. 223, 91 S. W. 791.

Nor is this placed in any better light because appellant and Susan McCord were-material witnesses, that they were impeached upon an irrelevant and immaterial matter. The impeachment of a material witness on an immaterial matter is not harmless error. See Branch’s Crim. Law, § 867, where a great number of authorities are collated in support of this proposition. The text is so tersely laid down by Mr. Branch, and the authorities being so much in point, we deem it unnecessary to go further into this matter. It may be that acts of adultery by appellant’s wife during coverture, if known to-him, could be admitted.

Another rule may be laid down in this connection: “Impeaching a material witness on-an immaterial matter is reversible error, because, by discrediting the witness, and showing the jury that upon an immaterial issue he had testified falsely, it is calculated to make the jury believe that he may have testified falsely in regard to other matters which were material.” Same authorities cited in the above proposition. This is a quotation from Mr. Branch’s work on Criminal Law, § 887, and the authorities are collated under that proposition. The statement of' the proposition could not well be better condensed or more tersely or correctly stated,, and the authorities sustain this, and this ruling of the court was error.

Another rule is equally correct and as tersely stated by Mr. Branch: “It is not proper to allow a witness to be cross-examined as to any matter which is collateral,. and immaterial to tlie issue merely for tlie purpose of contradicting him by other evidence.” The exception to this rule may be matters that pertain to motive, interest, or animus of a witness, but that rule does not apply here.

Another rule may be stated, also, in this connection: “When a witness is cross-examined on a matter collateral to the issue, his answer cannot be subsequently contradicted by the party putting the question.” See Branch’s Criminal Law, § 867, for the authorities.

Again, the rule may be herein invoked correctly that mere' accusations or evidence of particular act of misconduct are not admissible to affect the credibility of a witness. A witness can only be impeached as to other offenses by showing that he has been legally charged with a felony, or a misdemeanor, imputing moral and legal turpitude. See Branch’s Crim. Law, § 868, for collation of authorities.

Another proposition is correctly stated by Mr. Branch as follows: “If a witness answers no, as to adulterous relations or other courses of conduct that might reflect upon the witness, the answer is conclusive, and it is improper for the court to permit opposing counsel to put other witnesses on the stand and impeach the witness by proving conduct and transactions that would lead the jury to believe that the witness had been guilty of adultery.” Gonzales v. State, 54 Tex. Cr. R. 231, 112 S. W. 941. Sims v. State, 4 Tex. App. 145.

6. It is contended that the court erred in his charge wherein he sought to limit the impeaching testimony against Susan McCord. That charge reads as follows: “Evidence is also before you as to whether or not defendant had sexual intercourse with Susan Mc-Cord. This evidence cannot be considered by you as a circumstance against the defendant, but is before you for the sole purpose of enabling you to pass on the interest, if any, and the credibility of the witness, Susan Mc-Cord.” There are several objections to this charge, but suffice it to say this was error. The evidence does not show, except circumstantially from one of the witnesses, that appellant and Susan McCord were intimate. One witness did swear that he had seen appellant go to the house of Cal McCord, the husband of Susan McCord, during Cal’s absence, upon which occasions the door would be shut and the window blinds closed or the curtains down. This may have been or not a suspicious circumstance, but it did not warrant the court in assuming that there had been adulterous intercourse and so instructing the jury. It is error in limiting impeaching testimony for the court either to assume that an act was done or that the witness had made such statement See Green v. State, 49 Tex. Cr. R. 653, 98 S. W. 1059.

It is also laid down that it is error to single out one or more facts in the evidence and limit this to motive. This would be a charge upon the weight of the evidence. See Pannell v. State, 54 Tex. Cr. R. 504, 113 S. W. 536; Terry v. State, 45 Tex. Cr. R. 272, 76 S. W. 928.

7. Appellant criticises the following charge on self-defense: “If you find that the defendant shot with a pistol and killed deceased, he was justifiable in such killing if he did so to prevent George Miller from killing him or inflicting serious bodily injury on him, provided it reasonably appeared by the act of Miller or by the words of said Miller, coupled with his act, that it was the purpose and intent of the said Miller to kill the defendant or to inflict on him some serious bodily injury, and the killing must have taken place while Miller was in the act of killing him (defendant), or of inflicting such bodily harm on him, or after some act done by Miller showing evidently an intent to kill him or to inflict on him such bodily injury. So if you shall find that at the time defendant shot George Miller, he (deceased) had done some act which alone or by words accompanying it, taking into consideration the relative strength of the parties and all the facts and circumstances in evidence, viewed from the defendant’s standpoint, reasonably manifested to defendant’s mind an intent upon the part of deceased to kill him or to inflict upon him some serious bodily harm, and if to protect himself from such danger or apparent danger, if any, as it reasonably appeared to the defendant, he shot and killed deceased, Miller, then in either event you will acquit the defendant.” Various objections are urged to this charge, some of which we think are well taken.

The question of the relative strength of the parties had nothing to do with the case. Appellant’s theory of self-defense was based upon the appearance of danger. The deceased did not exhibit a pistol, and the evidence indicates he was not armed. The defensive theory and testimony in support of it related only to the fact that deceased had gotten over the fence in the lane where appellant was, and had started on him and made a gesture towards his pocket or had put his hand in his pocket. It was purely a case of apparent danger. There was no evidence that he was killing him. The evidence was to the effect that he reached to his pocket or into it producing upon appellant’s mind the belief that he was then trying to get his pistol or some instrument with which to inflict upon appellant death or serious bodily injury. It is advisable at all times for the court to charge the law applicable to the particular facts in a pertinent and affirmative way, applying the law directly to the case made and the issues presented. As we understand the record, the question of relative strength of the parties had nothing to do with the case. There was no personal encounter between them. Appellant shot Miller, the deceased, before he reached him and while he was approaching him in the attitude above mentioned. It is nnneeessary to cite the authorities. The question of relative strength of the parties, under circumstances detailed in this record, has frequently caused the reversal of judgments where the facts did not justify such charge.

8. Another charge was given to which •exception was taken, as follows: “The defendant was justified in such killing, and you will acquit him if you find he did the same to protect himself against any other unlawful and violent attack on the part of Miller besides an attack with intent to kill defendant, or to inflict serious bodily injury on him, as it reasonably appeared to defendant viewed from his standpoint. But to justify himself in killing Miller to defend himself against an attack, if any, by Miller, the killing must have taken place while Miller was in the very act of making such unlawful and violent attack.” There is no evidence in the record that calls for or justifies this charge. There was no attack made upon appellant by deceased, violent or otherwise. The facts have been sufficiently stated to show simply a ease of apparent danger viewed from defendant’s standpoint. Whatever of unlawfulness on the part of the deceased or purpose on his part to do violence or injury to appellant was found in the appearances of danger already mentioned. This did not justify this charge, and there was nothing in the record that called for it, and it was submitting to the jury an issue not developed by the facts and compromising his theory of self-defense.

All of the questions have not been discussed with reference to the objections to the rulings of the court in reference to the admission and rejection of testimony, but a sufficient number of them have been discussed to let the trial court understand that the testimony of which complaint was made and testimony of a similar character is covered by the decision.

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


author: HARPER, J.

text:
    BLACK v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 5, 1913.)
    1. Witnesses (§ 240) — Examination oe Prosecutrix — Beading Question.
    A question to the prosecutrix in a seduction case, as to whether she would have yielded to defendant had it not been on account of his promise to marry her, was not objectionable as leading and suggesting the answer desired by the prosecuting officer.
    [Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. §§ 795, 837-889, 841-845; Dec. Dig. § 240.]
    2. Seduction (§ 40) — Evidence—Character oe Prosecutrix.
    In a prosecution for seduction, evidence that letters were written by the sister of the prosecutrix to a named third person was inadmissible.
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. §§ 72, 76, 79; Dec. Dig. § 40.]
    3. Criminal Daw (§ 938) — New Trial — Newly Discovered Evidence.
    Newly discovered evidence, after conviction for seduction, that persons other than affiant had made statements adverse to prosecutrix’s chastity, are not ground for new trial, in the absence of any showing that the makers of the statements had been witnesses at the former trial, or would in fact testify on a new trial that the alleged statements by them were true.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig.- §§ 2306-2315, 2317; Dec. Dig. § 938.]
    4. Criminal Law (§ 945) — New Trial — Newly Discovered Evidence.
    Newly discovered evidence, in a seduction case, that one H. had received a letter from prosecutrix, after he had called on her, was no ground for new trial, in the absence of any showing of any improper language in the letter.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2324-2327, 2336; Dec. Dig. § 945.]
    5. Criminal Law (§ 942) —New Trial — Newly Discovered Evidence.
    Newly discovered evidence, which merely tends to impeach the credibility of witnesses for the state, is not ground for new trial.
    [Ed. Note. — For other eases:, see Criminal Law, Cent. Dig. §§ 2316, 2331, 2332; Dec. Dig. § 942.]
    6. Criminal Law (§ 945) — New Trial — Newly Discovered Evidence.
    Newly discovered evidence that affiant, while passing the home of prosecutrix, had seen her pull her dress up to her knees and kick up her heels in a way to attract his attention, has too slight weight on the issue of her chastity to warrant a new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §| 2324-2327, 2336; Dec. Dig. § 945.]
    7. Criminal Law (§ 938) — New Trial — Newly Discovered Evidence.
    Where a witness for the state was subsequently also put on the stand and testified for the defense, matters about .which he was not then examined are not newly discovered evidence warranting a new trial.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2306-2315, 2317; Dec. Dig. § 938.]
    Appeal from District Court, Ellis County; F. L. I-Iawkins, Judge.
    Lester Black was convicted of seduction, and he appeals.
    Affirmed.
    Will Hancock and W. H. Fears, both of Waxahachie, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

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

On this trial, by her testimony, Nobie Cook would make a plain case of seduction. Appellant testified and admitted that he had had carnal intercourse with the prosecutrix on the dates alleged by her, and he says also at other times, but denies any promise of marriage or that he was ever engaged to marry her. However, Nonie Cooper corroborates the prosecutrix as to the promise of marriage, and while she states that appellant made the admission to her at a time that appellant by his witnesses would show he was elsewhere, yet the jury passed on these questions, and the testimony offered by the state, if believed by the jury, is ample to support the verdict.

It appears by one bill of exceptions that the appellant objected to the following tes'timony. The state asked the witness Miss Nobie Cook: “I will ask you this question: Why did you permit him to have intercourse with you? A. I loved him, and he promised that he would marry me; I loved him well enough to do just what he said do.” And then said witness was asked by the attorney for the prosecution the following question: “Q. Miss Nobie, would you have yielded to him to have sexual intercourse had it not been on account of his promise to marry you? A. Would I have done this if he had not? Q. Tes. A. No, sir; I would not. If he had not promised to marry me, I would not.” Appellant objected to the second question, and the witness being permitted to answer the same, on the ground that the question was leading and suggested the answer desired by the prosecuting officer. This question was decided adversely to appellant’s contention in Hinman v. State, 59 Tex. Cr. R. 29, 127 S. W. 222; Snodgrass v. State, 36 Tex. Cr. R. 207, 36 S. W. 477; and Carter v. State, 59 Tex. Cr. R. 73, 127 S. W. 217.

Under the statements in the bill .refusing to permit the witness Milton Burton to testify in regard to some letters being mailed to Herman Rodden, we cannot say that the court erred. This witness says it was the older girl who wrote the letters, and the older girl is clearly shown to be the prosecuting witness’ sister, Miss Nona, and, if so, the testimony was inadmissible. It is further stated in the bill that when the witness Rodden was testifying no predicate had been laid to render this impeaching testimony, if the witness had identified .the prosecutrix, Miss Nobie, as the writer of the letters.

Only one special charge was requested, and the principles of law therein stated are fully covered by the court’s main charge; therefore there was no error in refusing same.

The only other question raised in the motion for a new trial that need be discussed is the ground alleging newly discovered testimony. The affidavit of G. J. Killen is attached to the motion, and he testifies as to what Bill Benton told him. As to what Bill Benton may have said, it would be' hearsay evidence pure and simple, and not admissible in evidence if appellant had known it at the time of the trial. Bill Benton was not a witness in the case, and there is no affidavit from Benton or any other person that Benton on another trial would testify such statements were true, and, if Benton had been introduced as a witness and testified that such facts were not true, then the testimony of Killen would be admissible to impeach Benton; but not even then as original testimony to prove that Miss Cook was unchaste. The affidavit of Charley Morton shows that Benton would not have testified that such facts were true.

The fact that T. C. Holland received a letter from Miss Cook, after he had called on her, could have but little tendency to show that she was unchaste. He does not state that any improper language was used in the letter, and the mere fact that he received a letter would have no bearing on the issues involved.

It is shown that appellant had a subpoena issued for John Rodden, and the subpoena is returned not served. The record discloses that appellant, at the previous term of the court, had continued the case on account of the absence of John and Herman Rodden; that at this term the attendance of Herman Rodden was secured, and no application to postpone or continue the case was made because of the absence of John Rodden. In fact, if such application had been made, the record discloses there could have been but little hope of securing the attendance of John Rodden, as his residence had not been ascertained even at this term of court. And John Rodden not being a witness in the case, what he may have told or said in the presence of O. A. Gamble and others would not be admissible in evidence. There is no allegation that John Rodden would so testify if he was present and in attendance on court. His statements made to others outside of the courtroom would not be admissible to show that Miss Cook was unchaste.

We have examined each and every affidavit attached to the motion for a new trial, and none of them would be admissible as original testimony to show that Miss Nobie Cook was unchaste, except perhaps the testimony in part of Walter Poole, which will hereinafter be recited and discussed. All the other testimony recited in the affidavits would only be admissible to impeach the witnesses John Rodden and Bill Benton had they been introduced as witnesses, and, not being introduced as witnesses, would not be admissible for any purpose, and to impeach the witnesses Eddleman and Dutch Rodden; the part tending to impeach Eddleman and Dutch Rodden would be admissible for that purpose alone, and could and would not be admissible as showing that Miss Cook was unchaste. Eddleman and Dutch Rodden were not introduced by the state to prove either the promise of marriage, nor that defendant had had intercourse with Miss Cook.

After appellant testified that Eddleman and Dutch Rodden knew certain things,, and liad so told him then they were introduced and testified they had told appellant no such things, and none of the alleged newly discovered testimony goes to the fact that they had in fact told appellant what he said they had, but would only tend to show that they had made disparaging remarks about the prosecutrix, which they deny and say are untrue. As before stated, if it should be shown they in fact had made these disparaging remarks, it would only go to their credit as witnesses, and not as to the chastity of Miss Cook. No witness testifies that Miss Cook had ever conducted herself improperly with those witnesses, but only offer to testify what they say the Roddens, Benton, and Eddleman had told them, when not in the presence of Miss Cook. If these young men in fact made these disparaging remarks, when there is no testimony that such remarks were true, it could not and should not have any bearing on the issue of the chastity of Miss Cook, but simply reflects on the man who made the remarks, if they did so.

As to the affidavit of the witness Walter Poole, hereinbefore mentioned, he states that he would testify on another trial that “he traveled the road passing the home of the Cook girls, and that on various occasions they pulled their dresses up to their knees and kicked up their heels in a way that attracted his attention, displaying their lower limbs.” Again, he says: -“That he had heard various and different boys talk about the prosecutrix’s reputation for virtue and chastity, naming Dick and Jack Eddleman, Cal Winn, and Holly Jacobs, and that they gave her a bad reputation.” But neither on the trial nor in the motion for new trial is the testimony of either of these attacked showing that they knew of any improper conduct on the part of Miss Cook, and the fact that he had heard these boys make slighting remarks would hardly be admissible unless these boys were introduced as witnesses in the case, and there is no evidence that either of these boys would testify to any improper conduct on another trial. The fact that he had seen the “girl pull her dress up to her knees and kick” at her home would be admissible, but its weight as showing her lacking virtue would be but slight.

Again, it appears this witness was in attendance on court, called as a witness by the state, and testified that appellant admitted to him that he had carnal intercourse with the prosecutrix twice; that he was subsequently recalled by appellant, and testified to certain facts at his instance. Under such circumstances, could the testimony of Walter Poole, if material, come within the rules prescribed for new trials on the ground that he knew facts that appellant did not-discover at the time? In White’s Ann. Code of Criminal Procedure, subd. 3, § 1149, the rule is: “Where the witness was interviewed by defendant’s counsel upon one phase of the case only, and was not put upon the stand, her testimony upon another phase of the case is not newly discovered” — citing Williams v. State, 45 S. W. 572. It appears that Poole was actually used by appellant as a witness to one fact, and was not questioned as to these other matters which he says he .will now testify to. Again it is held: “Where the witness appeared and testified, his further testimony is not newly discovered” — citing cases. In this case appellant does show that his attorneys approached the witness and he objected and refused to talk to them, and under such circumstances, if the testimony was of a very material nature, we would be inclined to relax the above rule; but, as shown above, the part which would be admissible could have but slight, if any, weight. Without citing other authorities, we merely refer to the cases cited and rules of law stated in section 1149, subds. 3, 5, 6, and 8, of White’s Ann. Procedure, and it will be seen that, under all the decisions of this court, nothing is stated in the affidavits that would justify this court in reversing the case.

The judgment is affirmed.


author: PHILLIPS, J.

text:
    JUDKINS v. ROBISON, Com’r of General Land Office.
    (Supreme Court of Texas.
    Nov. 26, 1913.)
    1. Public Lands (§ 173) — Forfeiture—PROCEEDINGS FOB REPUBCHASE — CUMULATIVE Remedies.
    rlhe remedy provided by Acts 33d Leg. c. 160, providing that forfeited school lands included within its operation may be repurchased at the reappraised value upon the former owner giving notice within the prescribed time to the Commissioner of the General Land Office of 'his desire to repurchase, is cumulative of his right to obtain a reinstatement of the sale after forfeiture under Rev. Civ. St. 1911, art. 5423.
    [I£d. Note. — For other cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. Dig. § 173.]
    '2. Public Lands (§ 173) — Forfeiture—Re-pueohase — Election of Remedies.
    The election by the owner of public school lands, forfeited for nonpayment of interest, to repurchase upon reappraisement by giving notice to the Commissioner of the General Land Office, pursuant to Acts 33d Leg. e. 160, precluded him from having the original sale reinstated under Rev. Civ. St. 1911, § 5423, providing for reinstatement of forfeited lands, though the remedies were cumulative.
    ■ [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. Dig. § 173.]
    3. Public Lands (§ 173) — Fbee School Lands — Relief to Puechasebs — Constitution ality of Statute.
    The test whether a statute violates Const, art. 7, § 4, prohibiting the Legislature from granting any relief to purchasers of public free school land, is whether its necessary operation enables the previous owner to reacquire the land at a less price than he was bound to pay under his former purchase, and the Constitution was not violated by Acts 33d Leg. c. 160, giving the owner of land forfeited for nonpayment of interest the right to repurchase at the reappraised value upon giving notice to the Commissioner of the General Land Office, since the price paid on repurchase might be more than the original price paid.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. Dig. § 173.]
    4. Constitutional Law (§ 48) — Constitutionality of Statute — Consteuction Favoring Act.
    A statute should not be declared unconstitutional unless it is clearly so.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 46; Dec. Dig. § 48.]
    5. Statutes (§ 60) — Consteuction—Consid-eeation — Operation.
    While the necessary operation of a statute may be considered in determining its validity, the court should not look beyond the face of the statute in determining its effect.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 53, 55; Dec. Dig. § 60.]
    Application for mandamus proceedings by Frank A. Judkins, relator, against J. T. Rob-ison, Commissioner of the General Land Office.
    Writ denied.
    Chas. Rogan, of Austin, for relator. B. F. .Looney, Atty. Gen., and G. B. Smedley, Asst. Atty. Gen. (W. F. Ramsey, of Austin, of counsel), for respondent. J. M. Caldwell, of Midland, filed a brief for respondent by permission of the court.

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

   PHILLIPS, J.

By an act of the Thirty-Third Legislature (chapter 160, p. 336) it is. provided in respect to any of the public free school lands purchased from the state after January 1, 1907, and prior to January 1, 1913, on condition of settlement and residence, the sale of which may be forfeited after its enactment on account of nonpayment of interest accrued before the passage of the act, that the owner of such land at the date of the forfeiture shall have the right, for a period of 90 days after notice of classification and appraisement of his land as provided by the act, to repurchase any of such tracts, not to exceed one complement of sections, fipon the terms and conditions therein prescribed. The act provides for an ap-praisement of the land by the board of appraisers created for that purpose, and the privilege of the forfeiting owner to repurchase under such valuation, to be exercised according to its terms; but a distinctive feature of its provisions is that the right of such owner to repurchase is acquired only through his notification to the Commissioner of the General Land Office of his desire to repurchase the land, which is required to be given within a stipulated period. If the right of repurchase at the appraised valuation is not exercised, the lands are required to be placed by the Commissioner on the market for sale as is now provided by law for the sale of leased land.

The relator was the owner of certain lands within the classification of this act, and his purchase was duly forfeited by the Commissioner on July 12, 1913, after the passage of the act, on account of the nonpayment of interest which had accrued prior to its enactment. Thereafter on July 21, 1913, in evident pursuance of the act, he advised the Commissioner of his desire to repurchase the lands and requested their reappraisement. They were reappraised under the act and their value fixed by the board at $3 per acre, which was $1 per acre in, excess of the price of the relator’s original purchase from the state, of which appraisement he was duly notified. On October 3, 1913, in abandonment of any further attempt to repurchase under the act, the relator sought to have his original purchase reinstated under article 5423, R. S. 1911, by application for such reinstatement and tender of all accrued interest in accordance with the provisions of that article. The Commissioner refused to receive the payment and reinstate the sale, and the purpose of this action is to compel him to do so.

The relator maintains that the act of the Thirty-Third Legislature, above referred to, providing that forfeited lands embraced within its operation may be repurchased upon the terms and conditions therein prescribed, interposes no obstacle to the right of a forfeiting owner to obtain a reinstatement of the sale of such lands under article 5423; that it worked no repeal of that statute and is but cumulative of the remedy of reinstatement therein provided; that he was privileged to avail himself of either right; and, though he had invoked the remedy of repurchase under the later act to the extent of advising the Commissioner of his desire to repurchase and had requested and obtained a reappraisement of the land, he is yet entitled to pursue the remedy of reinstatement under the former article as imposing upon him the less onerous obligation. There is no conflict between the act and article 5423, and we agree that the remedy of repurchase provided by the former is but cumulative of that of reinstatement afforded by the latter. But is it a sound proposition to say that in the passage of this act the Legislature intended to afford to the forfeiting owner an opportunity of experimenting with the law for the purpose of ascertaining whether he might not obtain a new purchase of the land at a reduced valuation, and then permit him to repudiate his election and resort to the less onerous remedy if it were found that the valuation had been increased? We are unwilling to credit the Legislature with such a purpose, and,are unable, therefore, to give its enactment such an interpretation. The plainly expressed intention of the act was to extend to forfeiting owners of the lands described a distinct and additional remedy for the reinvestiture of such title as was possessed under the original purchase from the state, a remedy which in no wise impaired that already provided in article 5423, yet is altogether inconsistent with it, and which for that reason, when once invoked, forbids resort to any other. The effect of the act is to afford to the forfeiting owner the privilege of a reappraisement of the land and its repurchase at its new valuation. The title, however, may be reacquired under the act only by purchase at such valuation; and this of itself precludes the idea that it may be reacquired by reinstatement under article 5423 at a possibly different valuation.

Thé reappraisement is obtained under the act only in response to the forfeiting owner’s notice to the Commissioner of his wish to repurchase, and the right to repurchase is likewise only so acquired. It is this notice to the Commissioner, in a word, that puts the act in operation in the forfeiting owner’s behalf. By invoking the remedy of the act as a means for the reaequisition of the title, in the process of its reacquisition he is necessarily under every obligation imposed by its terms. If after his election to reacquire the title in this way, exercised by invoking the operation of the statute to that end, he may at will repudiate its requirements and reacquire the title by another and less onerous method, the inevitable result is to render the act altogether useless and convert its operation into an utterly vain proceeding, since it amounts to nothing more than merely a means of obtaining a useless reappraisement of the land, and its additional provisions have been enacted to no purpose if they maybe disregarded and the title be reacquired upon the different terms of another statute whenever the revaluation proves unsatisfactory to the forfeiting owner. It cannot be supposed that the Legislature intended that the operation of the act should be such as to thus deny it all effectual purpose, and such a consequence cannot be indulged by the courts when there lies fairly upon its face a construction under which all of its provisions may be given full force and left in unimpaired operation for the accomplishment of its evident purpose. The relator having elected to pursue the remedy provided by the act for the repurchase of the land by the notice given the Commissioner of his wish to repurchase, in virtue of which its reap-praisement was had, must upon familiar principles be denied the right to now have the original sale reinstated under the previous statute; and upon this ground is not entitled to a mandamus.

In his original petition the relator also assailed the validity of the act referred to as being condemned by that part of section 4, art. 7, of the Constitution, which provides that the Legislature shall not have power to grant any relief to purchasers of land belonging to the public free school fund. By an amended petition, however, upon which the case now rests, all attack upon the constitutionality of the act has been withdrawn, and the right to a writ of mandamus is based solely upon the ground above discussed. Since we granted the motion to file the petition for the purpose of determining the question of the constitutionality of the act, and under the facts disclosed by the record the relator would doubtless be entitled to the mandamus if the act be invalid,, we deem it proper to here pass upon that question as well.

Under what we regard as the established and correct construction of this provision of the Constitution, we do not think this enactment can be properly characterized as a relief act. In Barker v. Torrey, 69 Tex. 7, 4 S. W. 646, and Savings Bank v. Dowlearn, 94 Tex. 383, 60 S. W. 754, it is held that laws providing for an extension of time for the payment of the interest upon purchase obligations and suspending for such time the right of forfeiture are not within the constitutional inhibition. If laws of that character are excluded from the contemplation of the Constitution, it seems to us that the test provided necessarily is whether the act enables the purchaser of such lands to acquire the title freed from the obligation to pay the principal and interest of his contract, or whether its necessary operation will result in a diminution of the price of the land from that fixed in the contract by the payment of which the title may be acquired, unless it be true that laws granting indulgence of a different character from that afforded in the acts involved in the cases named, and other acts upheld by the decisions of this court, would come within the prohibition, which it is not necessary to here determine. The act does not relate to any acquisition of the title except upon the full performance of the purchase obligation, as it only deals with the previous owner as a new purchaser, with his former obligation canceled by the forfeiture of the previous sale. Nor does it involve the extension of any indulgence for the performance of the obligation. The test to be applied to it, therefore, is whether its necessary operation is to enable the previous owner to reacquire the land at a less price than he was obligated to pay under his former purchase. If its terms were to that effect or such were its necessary operation, we think it should be held invalid, though it purported to deal with the previous owner as a stranger to the title, as such an act would but prove an easy method to circumvent the constitutional provision. But that its terms are not to that effect and such is not its necessary operation relieves it in our opinion of the constitutional objection.

It is a familiar maxim that a legislative act is not to be declared unconstitutional unless it is clearly so.

It is also an accepted rule that the necessary effect and operation of a statute may be considered in determining its validity; but a court is not permitted to look beyond the face of the statute to ascertain such effect and operation, since the intention of a statute is that expressed in its terms, and its effect is to be determined accordingly. Unless the necessary effect and operation of this act according to its terms is to enable the previous owner to reacquire the land at a reduced price, it should be sustained, since otherwise it is not clearly unconstitutional. To declare it invalid because of a merely possible operation would involve not only the reversal of the rule that it should be upheld unless clearly unconstitutional, but would further require that we look beyond its terms to determine its effect. In such an inquiry we would enter upon the field of pure conjecture, and the unstable dependence of such a test is well demonstrated by the question here presented. This act leaves the board of appraisers free to fix a higher valuation upon the land than the original purchase price, which higher price must be paid by the previous owner if the land be reacquired. This case is itself an instance where the price was in fact increased. Its necessary operation is clearly, therefore, not to diminish the price at which the land may be purchased. Xet to hold the apt invalid upon the ground that its possible operation will be to reduce the price, we would be compelled to assume that such will be the result, though not a necessary effect, and when it is not improbable that its operation will serve to increase the price. The consequence would be the condemnation of an act of the legislative department of the government, not because of any infirmity apparent upon its face, nor because of any conflict between the Constitution and the law as written, but in obedience to a mere theory in respect to its operation, speculative in character and uncertain of fulfillment. Not many statutes would withstand so exact and yet so variable a test, as most of them are capable of abusive or perversive administration. The only safe or just rule for courts to follow, therefore, is that which determines the validity of a law according to its written words and its necessary effect, as distinguished from an unexpressed purpose or a possible operation. Tested either by its provisions or its necessary effect, the act is not violative of the constitutional provision. We think that the act at best only gives the previous owner the preference right to repurchase the land, and under the established holding of this court a statute of that character is not prohibited by the Constitution. Glasgow v. Terrell, 100 Tex. 581, 102 S. W. 98.

The writ of mandamus is refused.


text:
    GOLDEN v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 12, 1913.)
    1. Criminal Law (§ 370) — Evidence—Oihee Offenses — Acts Showing Intent.
    On the trial of the owner of a house for knowingly permitting it to be kept as a house of prostitution where prostitutes were permitted to resort or reside for the purpose of plying their vocation, evidence that a number of other houses owned by accused were occupied by women who were running houses of prostitution, that the occupants of the house in question and the other houses had been arrested charged with being prostitutes, and that accused went on their bonds was competent to show accused’s knowledge of the character of the occupants and their vocation.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 825-829; Dec. Dig. § 370.]
    2. Disorderly House (§ 16) — Evidence — Reputation.
    On the trial of the owner of a house for knowingly permitting it to be kept as a house of prostitution, evidence of the general reputation of the house was admissible.
    [Ed. Note. — Eor other cases, see Disorderly House, Cent. Dig. §§ 21-25; Dec. Dig. § 16.]
    3. Disorderly House (§ 6) — Permitting Use of House fob Pueposes of Prostitution.
    Where the owner of a house is charged with knowingly permitting it to be kept as a house of prostitution where prostitutes are permitted to resort or reside for the purpose of plying their vocation, knowledge that the occupants were prostitutes and were running houses of prostitution must be traced to accused.
    [Ed. Note. — Eor other cases, see Disorderly House, Cent. Dig. §§ 6, 9-13; Dec. Dig. § 6.]
    4. Criminal Law (§ 678) — Reception of Evidence — Election Between Acts.
    Where an information for knowingly permitting a house to be kept as a house of prostitution contained only one count, while the evidence showed that eight houses owned by accused were occupied by prostitutes who were running houses of prostitution, the state should have been required to elect upon which offense it would seek a conviction.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1580-1583; Dec. Dig. § 678.]
    5. Indictment and Infobmation (§ 131)— Joinder of Offenses.
    An indictment for felony may contain separate and distinct counts to meet the proof, but all must relate to the same transaction, while an indictment for misdemeanor may charge separate and distinct offenses if contained in separate and distinct counts.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 424; Dec. Dig. I 131.]
    6. Criminal Law (§ 678) — Reception of Evidence — Election between Acts.
    Under an information containing a single count if the evidence discloses two or more separate and distinct transactions, any one of which would sustain a conviction, the state must be required to elect, unless the offense charged is a continuous one.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1580-1583; Dec. Dig. § 678.]
    Appeal from Navarro County Court; R. R. Owen, Judge.
    E. Golden was convicted of an offense, and lie appeals.
    Reversed and remanded.
    Richard Mays, of Corsicana, 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

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

   HARPER, J.

Appellant was prosecuted and convicted under an information and complaint charging that on or about 1st day of July, 1912, he “was the owner of a certain house, building, and edifice, which he then and there did knowingly and unlawfully permit to be kept as a house for purposes of prostitution, and where prostitutes were permitted to resort and reside for the purpose of plying their vocation.”

The information contains but one count. The state was permitted to prove by Willie Lewis that she rented a house from appellant; that she was a prostitute and had pleaded guilty and been fined as a common prostitute. The state also was permitted to prove that appellant owned some eight or ten other houses located in the same neighborhood as the house rented by Willie Lewis, and that they were all occupied by women who were running houses of prostitution. The defendant objected to the testimony going to show that this witness and the occupants of the other houses had been arrested charged with being prostitutes; that when they were arrested he went on their bonds; and that he owned some eight or ten houses other than that occupied by Willie Lewis, all of which were occupied by other prostitutes who were plying their vocation. As this is an offense where knowledge of the character of the occupants and- their vocation must be traced home to appellant, all this testimony was properly admitted in evidence. Any testimony which would tend to show that the houses were houses of prostitution, that appellant was the owner of such houses and collected rent from the occupants, that he knew the vocation the occupants were pursuing, would be admissible, and the court committed no error in admitting the evidence that was adduced on the trial. Reputation of the houses in question was admissible under all of our decisions, as well as the other facts herein recited.

We have thus grouped all the bills of exception to the introduction of testimony and hold that the court committed no error in admitting the same, as it was necessary to trace knowledge to defendant that the women were prostitutes and were running houses of prostitution. Section 547 of White’s Ann. Penal Code, and cases there cited. There are many decisions of this court on the questions raised by appellant, and they are all adverse to his contention. It has been held that a house may be proven to be a disorderly house by the general reputation of the character of the women residing at or frequenting the house. Sylvester v. State, 42 Tex. 496; Ramey v. State, 39 Tex. Cr. R. 200, 45 S. W. 489; Owens v. State, 53 Tex. Cr. R. 1, 108 S. W. 379; Morris v. State, 38 Tex. 603; Golden v. State, 34 Tex. Cr. R. 143, 29 S. W. 779; Harkey v. State, 33 Tex. Cr. R. 100, 25 S. W. 291, 47 Am. St. Rep. 19; Wimberly v. State, 53 Ter. Cr. R. 12, 108 S. W. 384. It has also been held that the general reputation of the inmates may be proven. Forbes v. State, 35 Tex. App. 26, 29 S. W. 784; Downs v. State, 23 S. W. 684; Frazier v. State, 47 Tex. Cr. R. 25, 81 S. W. 532. Acts of defendant showing knowledge of the character of the women are admissible. Brown v. State, 48 S. W. 176. Evidence of acts showing conduct and conversation had with inmates is admissible to show character of the place. Hickman v. State, 59 Tex. Cr. R. 88, 126 S. W. 1149; Robbins v. State, 60 Tex. Cr. R. 523, 132 S. W. 770; Finn v. State, 60 Tex. Cr. R. 521, 132 S. W. 805. Rendition of property for taxes made and sworn to by defendant is admissible as a circumstance tending to show ownership. Frazier v. State, 47 Tex. Cr. R. 25, 81 S. W. 532. Deed made to defendant to property in question is admissible on the question of ownership. Frazier v. State, 47 Tex. Cr. R. 25, 81 S. W. 532. Many other cases could be cited showing the admissibility of the testimony in regard to which the bills of exception were reserved, but we deem it unnecessary, as the above cases pass upon virtually every question raised by appellant as to the admissibility of the testimony.

However, as hereinbefore stated, the information and complaint contains but one count, and it is charged in that count that he knowingly permitted a house owned by him to be kept as a house of prostitution and as a place where prostitutes resorted and resided. The evidence offered in behalf of the state would show that appellant was the owner of lots 6 to 9 in block 120, lots 3 and 4 in block 121, and lot 1 in block 120. The evidence further shows that he had some ten houses located on these lots, and that Willie Lewis lived in one of these houses; that women named Erie and Tobe occupied another of these houses; that Lizzie Lee occupied another; that Bacilla Brown occupied another; Earl Lewis another; Tecie Alexander another; Willie Hodge, Annie Burns, and Mamie Orackshot also occupied houses—making eight separate and distinct houses occupied by eight separate and distinct women, all of whom were shown by the eyidence introduced in behalf of the state to be prostitutes, and each of whom were shown to be running houses of prostitution. This evidence, offered in behalf of the state, under our decisions was admissible to trace knowledge to appellant that he was permitting a house owned by him and under his control to be used as a house of prostitution.

When the state closed its evidence, appellant filed a motion asking that the state be required to elect on which one of these houses (as the indictment contained only one count) it would seek and ask a conviction. The court declined to force the state to elect, and this is assigned as error. Again, after all the testimony had been introduced both for the state and defendant, the defendant asked that the state be required to elect for which house it would ask a conviction. The court again overruled the motion and in his charge instructed the jury that, if appellant knowingly permitted “a house owned by him to be kept as a house of prostitution and a place where prostitutes were permitted to resort and reside, they would find him guilty.” Thus it is apparent by the charge given that, if the jury found that either of the eight houses occupied by the eight separate and distinct persons was a house of prostitution, they would be authorized to find the appellant guilty. Appellant complains of this charge of the court, and the failure of the court to require the state to elect upon which house it would seek a conviction, and the failure to give special charges in regard to this matter. Thus the issue is squarely presented to us in a misdemeanor case, where the indictment or information contains only one count, and the evidence for the state would sustain a conviction not only as to the one count but would sustain a conviction as to seven other separate and distinct offenses of the same character and kind, committed contemporaneously: Can the court in his charge authorize a conviction of either of the eight offenses on the one count? Doubtless it is true a conviction thus obtained, as contended by the state, would bar a prosecution for all eight of the separate and distinct offenses shown by the testimony, offered in behalf of the state, to have been committed. But the question arises even in a misdemeanor case, where the information charges only one offense to have been committed: Can the state offer evidence of eight separate and distinct offenses of the same character and kind and secure a conviction upon proof of either of the eight? Can a defendant upon an indictment charging only one offense be required to defend against eight offenses of the same character and kind?

If the indictment had charged eight separate and distinct offenses by eight separate and distinct counts in the indictment, there is no question that the defendant could have been tried and convicted on all eight counts, or such number of them as the evidence justified, this being a misdemeanor; that is, if the indictment or information charged separate and distinct offenses in separate and distinct counts, the person on trial could, if the evidence justified, be convicted' of each and all the offenses charged in the separate and distinct counts contained in the information pr indictment. Our decisions all so hold, and the text-books sustain these decisions. In a felony, of course, the rule is that the indictment must relate to but one transaction; it must charge but one offense or transaction. If the facts render it uncertain as to the offense committed in a felony, the indictment in different counts may charge separate and distinct offenses, but the counts must relate to the same transaction. In a misdemeanor this is not the rule. The indictment may charge separate and distinct offenses if contained in separate and distinct counts. Thus in a misdemeanor the indictment may charge a theft on a certain date, and in a separate and distinct count may charge another theft to have been committed on a separate and distinct date and from another and different person than that contained in the first count, and a conviction had upon either or both the counts contained in the indictment. Thus separate and distinct offenses may be charged in a misdemeanor case in separate and distinct counts, and no election required, while in a felony an election will be required if separate and distinct offenses are disclosed by the testimony. In a felony ease, while the indictment may contain separate and distinct counts to meet the proof, yet the counts must relate to the same transaction, while in a misdemeanor case, if the indictment contains two or more counts, it may relate to separate and distinct transactions, and a conviction obtained upon either or all of them in one trial if the evidence justifies.

Where an indictment or information contains but one count, charging a misdemeanor, our decisions, are not clear whether or not the state can be required to elect. In the ease of Williams v. State, 97 S. W. 498, and other cases, it has been held by this court that the state could not be required to elect, even if the information contained but one count and the evidence showed other several distinct offenses of the same character and kind. In the cases of Williams v. State, 44 Tex. Cr. R. 317, 70 S. W. 957, Larned v. State, 41 Tex. Cr. R. 509, 55 S. W. 826, Thweatt v. State, 49 Tex. Cr. R. 617, 95 S. W. 517, and other cases, it has been held error in misdemeanor cases, where the information contained but one count, not to require the state to elect upon which offense it would ask a conviction. It is thus seen our decisions are in conflict, the court in some of the cases holding it error and in other cases saying the state would not be required to elect, but the better doctrine we believe to be as laid down by Mr. Wharton: “Where a specific offense is charged, the indictment cannot be sustained by proof of a second offense even on the same day. This results from the general principles that evidence of offenses collateral to that in the indictment cannot be received, and that the issue should be single. And should it happen that the evidence discloses several successive offenses, any one of which could sustain a conviction, the prosecution (unless the charge is for a continuous offense) must elect the offense which it will pursue.” If the information contains but one count, and the evidence discloses two or more separate and distinct transactions, the state may he required to elect unless the offense is a continuous one. If the information contains two or more counts, the state will not be required to elect as 'between counts, but it may ask for and secure a conviction upon all counts. The evidence in this case showing the renting of eight different houses to as many different people, and the defendant having moved for and demanded an election at the proper time, it was error not to require the state to elect upon which transaction it would seek a conviction.

The judgment is reversed, and the cause is remanded.