text:
    CATLETT v. STATE.
    (No. 3170.)
    (Court of Criminal Appeals of Texas.
    June 17, 1914.
    Rehearing Denied Oct. 14, 1914.)
    1. Homicide (§ 90) — Assault to Murder— Deadly Weapon.
    A 32-caliber rifle, fired at a person from 75 "to 100 yards away, is a deadly weapon as a matter of law, and on a trial for assault to murder it is proper to refuse to submit to the jury the question whether the weapon is a deadly weapon.
    [Ed.. Note. — For other cases, see Homicide, Cent. Dig. § 119; Dec. Dig. § 90.]
    2. Homicide (§ 90) — Assault to Murder— Evidence.
    Where accused fired a 32-caliber rifle and wounded a person from 75 to 100 yards away, he was guilty of some grade of assault.
    [Ed. Note. — For other- cases, see Homicide, Cent. Dig. § 119; Dec. Dig. § 90.]
    3. Homicide (§ 257) — Assault to Murder— Evidence— Sufficiency.
    Evidence held to justify a finding of assault to murder by shooting under circumstances showing a reckless disregard of human life.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 543-552; Dec. Dig. § 257.]
    Appeal from'District Court, Coryell County; J. H. Arnold, Judge.
    Will Catlett was convicted of assault to murder, and he appeals.
    Affirmed.
    I. W. Culp, of Killeen, and Sadler & Cobb, of Gatesville, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was convicted of assault to murder, and his punishment assessed at two years’ confinement in the state penitentiary.

There are but two questions raised in the motion for new trial, one is that the evidence is insufficient to sustain the verdict, and the other is that the court erred in failing to give a special charge requested. Substantially the case for the state is, on the morning of the alleged assault (which occurred just before daylight), appellant was at the home of his father, his mother being sick. In the early morning, about 5 or 6 o’clock, the assaulted party, Ernest Kirby, and his two sisters were going from their father’s residence to a field some distance away to load some cotton, and in doing so the path would carry them near the residence of appellant’s father. Kirby had with him a lighted lantern. It being muddy, the tracks made by him and his two sisters were plainly discernible after daylight, and they were traced from their father’s home to the place where Kirby was shot, and these tracks showed that Kirby, and neither of his sisters, was not inside of the inclosure of appellant’s father; that they were traveling along the way when a gun was fired, striking Kirby in the shoulder. No word was spoken by either of the parties prior to the shooting.

Appellant’s contention is that some one had been stealing corn from his father’s barn, he having corn in this barn; that on the morning in question he saw a light near the barn and he called the attention of others present to that fact; that be believed some one was again trying to steal some corn. He secured a 32-caliber rifle, called a target gun, and he and Henry Jackson went down about the barn to make an investigation. After he got out of the house, he says, he could see the light moving on off, and he and Jackson hurried towards the light, and when he got in about 100 yards of the light he fired the rifle to frighten whoever it was with the light; that he did not know who it was.

There is no complaint in the record of the charge as given, but appellant contends that the court erred in failing to give the following special charge:

“At the request of counsel for defendant I charge you, gentlemen of the jury, in connection with the main charge and as a part thereof, that on assault to murder and aggravated assault the burden rests upon the state to prove, beyond a reasonable doubt, that the weapon used in making such assault, if any, was a deadly weapon, and should you believe from the evidence beyond a reasonable doubt that the defendant did assault, as charged, the said Ernest Kirby, but you have a reasonable doubt as to whether the weapon used was a deadly weapon, then you will acquit the defendant.”

We. do not think there can be any question that the weapon used was a deadly weapon. A 32-caliber rifle ball, fired at a distance of from 75 to 100 yards, would certainly inflict death. But if it was a question as to whether or not the rifle was a deadly weapon, the above charge should not have been- given, for if he fired the gun, and not killing, he would not be entitled to an acquittal, for he would be guilty of some grade of-assault under such circumstances. The court submitted both assault to murder and aggravated assault, and there is no complaint that he should also have submitted simple assault, and, taking, into consideration the character of weapon used, we do not think it was necessary for the court to have submitted that issue, even though such complaint had been made.

We think the evidence amply supports the- verdict, for it shows a shooting under such circumstances as to show a reckless disregard of human life. If appellant at first believed that the light was near his father’s barn, he knew before he - fired the shot that the light was not near it when he shot, for he had passed the barn some hundred yards before be fired. He said not a word, and if be bad called he would have learned that it was a neighbor passing by on bis way to work with two of bis sisters, and Jackson says that the morning after the shooting appellant said to him be wished be bad “killed Kirby.”

The judgment is affirmed.


source: Caselaw Access Project

author: PRENDERGAST, J.

license: Public Domain

text:
    HAYTER v. STATE.
    (No. 3178.)
    (Court of Criminal Appeals of Texas.
    June 24, 1914.
    Rehearing Denied Oct. 14, 1914.)
    Criminal Law (§ 1124) — Appeal—Jury.
    The trial court’s refusal to disturb a verdict-on the ground that the jury were affected by outside influences from a mob could not be disturbed on appeal in a criminal case, where the evidence heard by the trial court on that point was not brought up.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ .2939, 2946-2948; Dec. Dig. § 1124.]
    Appeal from District Court, Falls County; Richard I. Munroe, Judge.
    Jeff Hayter was convicted of assault to rape, and appeals.
    Affirmed.
    A. T. Russell, of Nacogdoches, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, J.

Appellant was convicted of an assault to rape, and bis punishment assessed at 10 years in the penitentiary.

The sole question appellant presents in his brief is his contention that the evidence is insufficient to sustain the verdict. We have carefully read and studied the evidence. It is-unnecessary to recite it. The court gave a correct charge. He also submitted everything that the evidence raised in appellant’s favor. The jury decided every issue against him. In our opinion the evidence is sufficient to sustain the verdict and we would not be authorized to reverse the case on that account.

One other question is suggested, and that is that outside influences from a mob affected the jury. The record shows that the court heard evidence on that issue, and decided it against appellant. We are in no way furnished with the evidence. We must presume that the court correctly decided the question.

The judgment is affirmed.


author: PRENDERGAST, P. J.

text:
    KNOWLTON et al. v. STATE.
    (No. 3168.)
    (Court of Criminal Appeals of Texas.
    June 17, 1914.
    Rehearing Denied Oct. 14, 1914.)
    1. Criminal Law (§ 1076*) — Appeal—Recognizance.
    .One convicted of a misdemeanor and not in custody can only perfect an appeal under Code Cr. Proc. 1911, arts. 918, 920, 923, by entering into a recognizance during the term, and the giving of an appeal bond, or of a recognizance subsequent to the term, is insufficient.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2708-2716, 3201; Dec. Dig, § 1076.*]
    2. Criminal Law (§ 304*) — Evidence—Judicial Notice — Terms oe Court.
    The Court of Criminal Appeals takes judicial notice of the terms of the district court of a county.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 700-717, 2951½; Dee. Dig. § 304.*]
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    George Knowlton and another were convicted of aggravated assault, and they appeal.
    Dismissed.
    Chambers & Watson, of San Antonio, for appellants. C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellants were indicted for assault with intent to murder. When tried they were convicted of aggravated assault. They entered into no recognizance. Instead they gave appeal bonds.

The state moves to dismiss the appeal because no recognizance was entered into. Under the statute and decisions the motion must be sustained. C. C. P. arts. 918, 920; Wells v. State, 150 S. W. 899; Hamilton v. State, 150 S. W. 775.

The appeal is dismissed.

Additional Opinion.

Since writing the above, appellants have filed and called to our attention a recognizance entered into by each of the appellants since June 10th inst., and thereby seek to show that this court has jurisdiction. The record shows that the term of court at which this trial occurred adjourned on February 28, 1914. No recognizance was entered into during that term of the court.

We know judicially that there have been two terms of the court since the conviction herein and that this recognizance, attempted now to be entered into, is at the third term of that court since the- conviction. Appellants have been out and not in custody during any of that time. The recognizances now entered into do not take the place, and cannot take the place, of a recognizance that should have been entered into at the term of their conviction, nor can a recognizance now entered into be taken in lieu of an appeal bond which appellants gave at the term of court at which they were convicted. The statute and the decisions are clear on this point. Articles 918, 920, 923, C. C. P.; Johnson v. State, 143 S. W. 1165; White v. State, 146 S. W. 937; Craig v. State, 147 S. W. 251; Hamilton v. State, 150 S. W. 775; Palmer v. State, 63 Tex. Cr. R. 614, 141 S. W. 109; Holman v. State, 10 Tex. 558; Grant v. State, 8 Tex. App. 432; Her-ron v. State, 27 Tex. 337; Koritz v. State, 27 Tex. App. 53, 10 S. W. 757; Youngman v. State, 38 Tex. Cr. R. 459, 42 S. W. 988, 43 S. W. 519; Quarles v. State, 37 Tex. Cr. R. 362, 39 S. W. 668.

This court has no jurisdiction of this cause.


author: HARPER, J.

text:
    KING v. STATE.
    (No. 3206.)
    (Court of Criminal Appeals of Texas.
    June 26, 1914.
    On Motion for Rehearing, Oct. 14, 1914.)
    1. Infants (§ 20) — Protection of Morals— Inciting to Crime — Information.
    An information charging defendant with causing his son, a minor, to loiter on school grounds was sufficient to charge that he “instigated” a minor, in violation of Pen. Code 1911, art. 37, to loiter on public school grounds, in violation of the express provisions of article 1514.
    [Ed. Note. — For other eases, see Infants, Cent. Dig. § 20; Dec. Dig. § 20.]
    2. Infants (§ 20) — Protection of Morals— Inciting to Crime — Sufficiency of Evidence.
    Evidence held to sustain a conviction of instigating a minor, in violation of Pen. Code 1911, art. 37, to loiter on school grounds, in violation of article 1514.
    [Ed. Note. — For other cases, see Infants, Cent. Dig. § 20; Dee. Dig. § 20.]
    3. Criminal Law (g 1056) —Appeal—Presentation below — Instructions.
    The giving or refusal of instructions cannot be reviewed on appeal in a misdemeanor case, where no exceptions are reserved thereto below.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2668, 2670; Dec. Dig. § 1056.]
    4. Criminal Law (§ 814) — Refusal of Instructions — Issues.
    Where, in a prosecution for inciting a minor, in violation of Pen. Code 1911, art. 37, to loiter on school grounds, in violation of article 1514, after he had been expelled, defendant admitted that he knew of such expulsion, the court properly refused to instruct that, even though the minor had been expelled, defendant would not be guilty unless he knew of such fact.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, I860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. § 814.]
    5. Schools and School Districts (§ 173)— Offenses — “Loitering” on School Grounds.
    Where a boy, after being expelled .from school and told not to return, enters the .schoolroom and refuses to go home, though commanded to do so by the teacher, this constitutes “loitering,” within Pen. Code, art. 1514, making it unlawful for any person to loiter on public school grounds.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. § 344; Dec. Dig. § 173.

    For other definitions, see Words and Phrases, First and Second Series, Loiter.]
    On Motion for Rehearing.
    6. Statutes (§ 122) — Title and Subject-Matter — Loitering on School Grounds.
    The title of Acts 29th Leg. c. 124, reading in part “An act to provide, for a more efficient system of public free schools,” sufficiently covers section 70, which makes it unlawful for any person to loiter on public school grounds, to comply with Const, art. 3, § 35, requiring that the subject of a statute be expressed in its title.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. § 175; Dec. Dig. § 122.]
    7. Infants (§ 20) — Inciting to Crime — Information — Recital of Evidence.
    That an information charging defendant with causing a minor, in violation of Pen. Code 1911, art. 37, to loiter on school grounds, in violation of article 1514, did not allege the way in which he caused the offense to be committed did not render it defective; it not being necessary that an information allege the evidence.
    [Ed. Note. — For other cases, see Infants, Cent. Dig. § 20; Dec. Dig. § 20.]
    8. Schools and School Districts (§ 173) —Offenses — Loitering on “School Grounds.”
    The term “school grounds,” as used in Pen. Code 1911, art. 1514, which prohibits loitering on public school grounds, is sufficiently broad to apply to acts done inside the building on the grounds, as well as on t.he grounds outside the building.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. § 344; Dec. Dig. § 173.]
    Appeal from Haskell County Court; A. J. Smith, Judge.
    J. M. King was convicted of inciting a minor to loiter on public school grounds, and appeals.
    Affirmed, and rehearing denied.
    H. G. McConnell, of Haskell, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

The second count in the information alleges:

“Gaylord Kline, county attorney as aforesaid, state aforesaid, in behalf of said state, further presents in the county court of said county of Haskell, at the May term, A. D. 1914, of said court, that J. M. King, on or about the 17th day of March, A. D. 1914, and before the filing of this information, in the county of Haskell and state of Texas, who was then and there the father of Homer King, did then and there unlawfully cause the said Homer King, who was then and there a minor and under the control of the said J. M. King, to loiter and loaf upon the public school grounds of the Sagerton public school, of the Sagerton independent school district, in said county and state, during the session of said public school, after the said Homer King had been warned by Grace McCormick, the person in charge of said school, to leave said school grounds, and remain away therefrom, against the peace and dignity of the state.”

Appellant moved, to quash this count in the information on the ground that:

“No offense against the laws of the state of Texas is charged or alleged, and no act alleged in said second count to have been committed by the said J. M. King is in violation of any law of the state of Texas.”

Article 1514 of the Penal Code provides:

“It shall be unlawful for any person * * * to loiter or loaf upon any public school grounds in this state, during the session of such school, after being warned by the person in charge of such school to leave such grounds”

—providing a penalty of not less than $5 nor more than $25.

Article 37, Penal Code, reads:

“When it shall appear that a minor was aided or instigated in the commission of an offense by a relation in the ascending line, * * * such relation * * * shall receive double the punishment imposed by law in ordinary cases for the same offense.”

And by article 38 it is provided that any person under the age of 21 years is a minor.

Under these provisions of the Code, we think this count in the information charges an offense against the laws, for when it alleges that he did then and there cause his son, Homer King, a minor, to loiter on the school grounds, it is equivalent to alleging that he “instigated” Homer King to commit the offense, and a father who causes or instigates his minor son to commit any offense against the laws of this state commits an offense under article 37 of the Code.

The evidence offered in behalf of the state would show that Homer King is the 14 year old son of appellant; that he was expelled from the Sagerton public school on March 16th, and was sent home on that day. His father, being informed of the fact that Homer had been expelled, went to see some of the trustees, and, when they would not act, he said he was going to send Homer back to school anyway. He was informed by the trustees not to do that, but to see the superintendent, and Homer did go back to the school in spite of the fact he had been expelled.

Miss Grace McCormick testified:

“I am the principal of the school. Yes, I expelled Homer King. He is 14 years old. I expelled him on the 16th day of March, 1914. The board in previous meeting authorized me to do so. I told him that he was expelled, and to take his books and leave the school and grounds and not to come back. X told him to take his books and go home. He said that if he was expelled it did not make any difference to me where he took his books. X told him no, but to take them away with him. He took his books and went away—went home, I suppose. Yes, he came back to school the next morning just a little after school had taken up. I discovered him in the room, and called him out into the hall and told him that he should not have come back to school; that he was expelled and to get his books and leave. He told me that he was going to stay in school, and that he was not going to leave. I told him that I would send for an officer if he did not go. He said that he was not afraid of me, nor the officers, and that hg was going to stay in school. He went on back" into the room and sat down at his desk. I sent for an officer, Mr. Jones, to come after him. I think he is the constable or deputy sheriff. Yes, he came after him at recess.”

O. P. Smith testified he had a talk with appellant the day after Homer had been expelled from school, and appellant told him he had sent Homer back to school. Wiley Pennal testified that appellant told him he was going to send Homer back to school, and said that he was going to stay there; that he was going to show the trustees that they could not run; things around there; that Homer was present when this conversation took place. W. PI. Littlefield testified he was one of the trustees, and appellant told him if the trustees would not meet he was going to send Homer back to school. Deputy Sheriff Jones said that appellant told him he ought to have arrested him at first if he 'was going to arrest anybody; that he had no right to arrest the kid. If anybody was guilty he was, as he had sent him back to school. Appellant and his wife testified that it was Mrs. King who sent, the boy back to school, and no^t appellant. Mr. Smith testified that Mrs. King told him that it was Mr. King who had sent Homer back to school. It it thus seen that the testimony for the state was ample to support the verdict.

The only bill of exceptions in the record is the one relating to the sufficiency of the second count in the information, which we have hereinbefore discussed, and this being a misdemeanor, unless there was an exception reseiwed to the charge as given, or the failure of the court to give the special charges requested, we cannot review those grounds of the motion for new trial. Basquez v. State, 56 Tex. Cr. R. 329, 119 S. W. 861. But, if we should consider the ■ special charges, they present no error. The first was a request for a peremptory instruction, and this the court correctly refused.

The-second is that even if Homer King had been expelled from school and warned to remain away, unless appellant knew that fact, he would not be guilty. The evidence does not raise suich an issue, for the testimony and all the testimony discloses that appellant was made aware that his son had been expelled; he admits this in his testimony; he goes to see the trustees in regard to the matter, and, when he could not get them to act in the matter, the boy is deliberately and intentionally sent back to the school, without the consent and against the wishes of those in control of the school. We always regret to see any one deprived of the advantages of school, yet discipline must be maintained or the school would be of advantage to none of the pupils. If a boy intentionally conducts himself in a way to render it necessary for the welfare of the school and the interest of all the other children that he be expelled, parents, instead of complaining of the school authorities, should pay more attention to the conduct and behavior of their children. The record discloses that this is not the first time Homer had to be sent home on account of his conduct, and if under such circumstances, after being expelled, a child, over the protest of the teacher, can go into the schoolroom, remain there, and, when classes are called, deliberately go to the classes, take part therein against the will of the teacher and over her protest,- there would be but little discipline and a great deal of disorder in the schoolroom.

Appellant insists that if the boy, at the instance and command of his father, after being expelled and told not to return, did go to the schoolroom, enter therein, and when told to go home, that he had been expelled, refused to do so, and said that he was going to stay in school, and would not leave, remarking that he was not afraid of an officer. over the protest of the teacher going to a desls and seating himself, going to the classes, etc., ignoring the teacher and refusing to obey her, this would not constitute “loitering” on the school grounds, as the term is used in the Code. We cannot agree that the word “loitering” should he given the narrow, restricted meaning contended for by appellant, but think the acts of the boy came clearly within the mischief sought to be remedied by the statute, and the facts authorizing the jury to find that he had been instigated and caused to do so by his father, the appellant.

The judgment is affirmed.

On Motion for Rehearing.

Appellant, in his motion for rehearing, contends that we did not understand all of his grounds for contending that the information charged no offense, and he says that the law under which he was prosecuted provides for three separate and distinct offenses. The law under which appellant was prosecuted was adopted in 1905, and is section 70 of chapter 124, which section reads as follows:

“That it shall be unlawful for any person or persons to loiter or loaf upon any public school grounds in this state during’ the session of such school after being warned by the person in charge of such school to leave such grounds and such person or persons so found shall be guilty of a misdemeanor, and upon conviction therefor shall be fined in any sum not less than five and not to exceed twenty-five dollars.”

This is the only offense defined by that section of the act, and appellant is in error in contending that, at the time of the passage of the act, the section defining this offense also defined two other offenses. Other sections of the act did define other offenses, but the section defining this offense undertook to define no other offense.

And the only question is: Was the title of the act broad and comprehensive enough to embrace the provisions of this section of the act? The act in question provided for a complete system of public free schools in Texas, and the first subdivision of the title reads “An act to provide for a more efficient system of public free schools for the state of Texas,” and then follows a very lengthy title. Section 35 of article 3 of the Constitution does not provide that only one offense can be defined in a law, but the bill shall embrace but one subject, and the “subject” of this act was the public free school system, and the provisions of section 10 of the act hereinbefore recited are germane to that subject, and the whole purpose of the law. Joliff v. State, 53 Tex. Cr. R. 63, 109 S. W. 176; Ex parte Abrams, 56 Tex. Cr. R. 467, 120 S. W. 883, 18 Ann. Cas. 45; Singleton v. State, 53 Tex. Cr. R. 626, 111 S. W. 736; Fahey v. State, 27 Tex. App. 146, 11 S. W. 108, 11 Am. St. Rep. 182; Brown v. State, 57 Tex. Cr. R. 271, 122 S. W. 525.

Appellant also contends that the information is defective because “therein it is not alleged in what way or manner appellant caused the minor to commit the offense.” This was a matter of proof, and it is never necessary to allege the evidence. When it was alleged that he caused the minor to commit the offense, it was required to prove that fact, but it was not necessary to allege the way he caused or instigated it to be done.

The evidence in this case amply proves that appellant knowingly caused the- minor to commit the offense, as is shown by the evi-' dence copied in the original opinion. He knew his boy had been expelled from school, and Pennal testified that appellant said he was going to send his boy back to school, and that he was going to stay there; that he would show the trustees they could not run things. This evidenced that he not only knew his boy had been expelled, but the trustees had forbidden his return to the school, yet he caused the boy to go back to the school and remain there, over the protest of the teacher. It seems to take the law to teach appellant “that he and he alone could not run things around there,” over the protest of the teacher and the trustees.

. The word “instigate” is defined in Century Dictionary to mean:

“To stimulate to action or cause, made to do something, urge; to stir up; foment'; bring about by persuasion or incitement, as to instigate a crime.”

Appellant not only urged his boy, according to the testimony for the state, but he required him to go to the school, and, as appellant said to the officer, he and not the boy was the one to arrest.

The construction contended for by appellant that the statute only covers grounds outside of that on which the building stands is hardly tenable. The language is broad and comprehensive enough to cover acts done inside of the building on the grounds, as well as on the grounds outside of the building. To say he could be prosecuted for loitering on the grounds outside of the building, but if he goes inside and loiters there, interfering with the orderly conduct of the school, he would not violate the law, would give the statute an absurd and unreasonable construction.

The motion for rehearing is overruled.


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

text:
    STATE ex rel. LOONEY, Atty. Gen., v. HAMBLEN, District Judge, et al.
    (No. 3228.)
    (Court of Criminal Appeals of Texas.
    July 13, 1914.)
    Criminal Law (§ 1216) — Punishment—Commencement of Teem.
    Where one convicted of forgery appealed to the Court of Criminal Appeals, and after the affirmance of the conviction filed two successive motions for rehearing, and then asked for stay of mandate in order that he might apply to the United States Supreme Court for writ of error, which application was denied, and the mandate then issued by Court of Criminal Appeals, during all of which, time the accused was out on recognizance, the sentence did not begin to run in any event until the mandate was issued by the Court of Criminal Appeals.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3310-3319; Dec. Dig. § 1216.)
    Application by the State, upon the relation of B. E. Looney, Attorney General, for a writ of prohibition against Hon. A. R. Hamblen, District Judge, and others.
    Writ issued.
    On September 21, 1911, F. E. Pye was convicted in the district court of Brazos county of forgery and sentenced to two years imprisonment in the state penitentiary. Thereafter he appealed from the Judgment of conviction to. the Court of Criminal Appeals, and the conviction was affirmed by that court June 19, 1912. After one motion for rehearing was overruled a second motion for rehearing was overruled March 5, 1913. On March 12, 1913, the court ordered the mandate stayed for the period of 30 days to give the defendant the opportunity to apply to the United States Supreme Court for a writ of error. After his application for that writ was denied, the clerk of the Court of Criminal Appeals issued the mandate to the lower court June 6, 1913. The mandate was received by the clerk of the district court June 13, 1913, and on the following day the clerk issued a capias for execution of sentence, and Pye, who had been-out on bail since September 26, 1911, was committed to the penitentiary June 17, 1913. On April 19, 1914, he was released; the prison authorities figuring the time of his sentence from June 12, 1912, the day of the af-firmance of the Judgment by the Court of Criminal Appeals. Shortly after his release Pye was taken into custody by the state transfer agent of Texas, acting under an order from the chairman of the board of prison commissioners. He applied to Hon. A. R. Hamblen, Judge of the district court for the Eleventh Judicial district of Harris county, for a writ of habeas corpus. The writ was issued, Pye was released on recognizance pending the hearing, and the cause was transferred to the Sixty-First Judicial district, and there set for hearing. Thereupon the Attorney General, on behalf of the state, applied to the Court of Criminal Appeals for a writ prohibiting the Judges of the district court from entertaining the ha-beas corpus proceedings.
    B. F. Looney, Atty. Gen., and C. A. Sweet-on, Luther Nickels, and W. A. Keeling, Asst. Attys. Gen., for relator.

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

   PRENDERGAST, P. J., and HARPER, J.

We know Judicially and as a fact from our own records: That F. E. Pye was duly and legally convicted of forgery in the district court of Brazos county on September 21, 1911, and that his punishment therefor was assessed at confinement in our state penitentiary for the term of two years. That he duly appealed from said conviction to this court, and remained at liberty pending the final disposition of his appeal, having duly entered into recognizance for that purpose. That his ease was decided by this court on June 19, 1912, the Judgment and sentence of said district court was duly affirmed, and thereby said Judgment and sentence of said district court became the Judgment of this court. That he thereafter duly filed two motions for rehearing, which prevented said affirmance from becoming final until overruled on March 5, 1913. That at his special instance and request this court withheld its mandate until June 6, 1913, to give him time and opportunity to apply to the Supreme Court of the United States for a writ of error, which he did, and which was afterwards denied by the Supreme Court of the United States. That afterwards on June 6, 1913, the mandate of this court was duly issued, by which, and the Judgment of this court, the said lower court was commanded to observe our said Judgment, “and in all things to have it duly recognized, obeyed, and executed,” and said mandate must have reached said lower court soon after its issuance. That under no circumstances could said Pye’s time of service in the penitentiary have begun until after June 6, 1913, and that it is impossible for him to have served his term since then.

We are satisfied that the penitentiary authorities in the attempted discharge of said Pye before he served his time, and the district Judges in their attempt to grant him a writ of habeas corpus and have a hearing thereunder, acted from no improper motive, but from a misapprehension of the law and facts. Under consideration of the law and facts, it is ordered by this court and the Judges thereof, as follows:

(1) That the petition of Hon. B. F. Looney, Attorney General of Texas, and his assistants, be duly filed and docketed by the clerk of this court.

(2) That this court, and the Judges thereof, will not permit any disobedience of, nor interference with, its Judgment and mandate, by any official of the state penitentiary, nor by any Judge of any court of this state, nor by any other person.

(3) That the writ of prohibition as prayed for by the Attorney General be granted and issued at once by the clerk of this court, and that it also direct and require said judges of the lower court to dismiss the habeas corpus proceedings and have no hearing thereunder and make no other order thereabout.

(4) That said Pye be at once delivered into the custody of J. V. Cunningham, state transfer agent of the state of Texas, or other proper official of the penitentiary. In case he is not so delivered, or does not himself at once surrender to said authorities, then that he immediately be taken, without capias or other writ, by any peace officer, or citizen of this state, and returned to said penitentiary, and required to serve his full time in accordance with the judgment and mandate of this court.

We base our authority to make this order on the general principles of law and section 4, article 5, of our Constitution; Ex parte Wyatt, 29 Tex. App. 398, 16 S. W. 301; Luckey v. State, 14 Tex. 400; Ex parte Branch, 37 Tex. Cr. R. 318, 39 S. W. 932; Ex parte Sherwood, 29 Tex. App. 334, 15 S. W. 812; McCorquodale v. State, 54 Tex. Cr. R. 362, 98 S. W. 879; Wells v. Littlefield, 62 Tex. 28; Conley v. Anderson, Judge, 164 S. W. 985; Hovey v. Shepherd, 105 Tex. 237, 147 S. W. 224; State v. Boyce, 25 Wash. 422, 65 Pac. 763; State ex rel. v. Drew, Judge, 38 La. Ann. 274; In re State, 18 La. Ann. 102; State ex rel., etc., v. Superior Court, etc., 8 Wash. 591, 36 Pac. 443; State v. Murphy, 132 Mo. 382, 33 S. W. 1136, 53 Am. St. Rep. 491; People ex rel. v. Court of, etc., 185 N. Y. 504, 78 N. E. 149; 23 A. & E. Ency. of Law (2d Ed.) page 195 et seq., to page 206.


author: HABPEB, J.

text:
    CYRUS v. STATE.
    (No. 3198.)
    (Court of Criminal Appeals of Texas.
    June 26, 1914.
    Rehearing Denied Oct. 14, 1914.)
    1. Criminal Law (§ 413) — Evidence—Self-Serving Declarations.
    Declarations by accused several hours after the alleged offense are inadmissible in his behalf, as self-serving.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 928-935; Dec. Dig. § 413.]
    2. Criminal Law (§ 413) — Evidence—Self-Serving Declarations.
    A statement by accused to an officer several hours after the alleged offense is not admissible in his behalf merely because he was warned at the time that what he said might be used against him, where the state did not seek to elicit any part of the statement.
    [Ed. Note. — For other cases, see Criminal .Law, Cent. Dig. §§ 928-935; Dec. Dig. § 413.]
    3. Witnesses (§ 379) — Impeachment—Conflicting Statements.
    A witness may be impeached by proof of statements in conflict with his testimony, on laying a proper foundation and calling as witnesses the persons to whom the conflicting statements were made.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1209,1220-1222,1247-1256; Dec. Dig. § 379.]
    4. Criminal Law (§ 940) — New Trial — Grounds — Newly Discovered Evidence.
    A new trial for newly discovered evidence not tending to discredit the testimony of a witness, and not contradicting the state’s testimony, is properly denied.
    [Ed. Note. — For other cases, see Criminal Law. Cent. Dig. §§ 2324r-2327; Dec. Dig. § 940.]
    5. Criminal Law (§ 1053) — Appeal—Questions Beviewable — Bill of Exceptions.
    Where a bill of exceptions was not reserved to the action of the trial court in calling the case out of its regular order, its action is not reviewable.
    [Ed. Note. — For other cases, see Criminal Law, Cent Dig. §§ 2661, 2665; Dec. Dig. § 1053.]
    Appeal from District Court, Freestone County; H. B. Daviss, Judge.
    Andrew Cyrus was convicted of assault to murder, and be appeals.
    Affirmed.
    W. J. Bryant, of Wortham, 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

   HABPEB, J.

Appellant was convicted of assault to murder, and his punishment assessed at six years confinement in the state penitentiary.

The state’s evidence would show: That appellant and his wife were visiting at the residence of her mother, Boxy Gaines. That Boxy Gaines and her daughter, appellant’s wife, desired to go and see a kinsman, May Eliza Bonner, who was sick, and appellant objected to his wife, going. Words ensued, when the woman learned appellant was armed with a pistol, and Boxy Gaines asked some of those present to go after Lee Lamb. They did not go, and Boxy Gaines went in the house and got a. gun, but, finding it had no loads in it, laid it down on the gallery. As she did so appellant began to shoot at her and killed her. H'e then turned and shot at his wife, who fled. Appellant pursued her, and when he caught her he shot her in the neck, and as she fell he ran off.

Appellant’s contention is that he and his wife had started to leave Boxy Gaines’ house to go home, when Boxy told his wife (her daughter) she need not go; that from this words ensued, when Boxy rushed in the house, got a gun, and shot at him, knocking his hat off; that he then shot her, and after he shot Boxy, his wife and Boxy’s son grabbed him, and in the scuffle the pistol went off two or three times, and if he shot his wife it was accidental, and he did not know he had done so until the next day. This is a sufficient synopsis of the testimony to discuss the various bills presented in the record.

In the first bill it is shown that, while Louise Cyrus was testifying for the 'state on cross-examination, appellant asked her, “Did you send to Andrew Cyrus (appellant) for some clothes for yourself and baby?” which question was objected to by the state, and the objection sustained by the court. The bill and the qualification of the court show that if slie sent to appellant for any clothes it was many months after the homicide, and after the alleged assault on Louise. Under such circumstances the bill presents no error, as it would shed no light on the transaction for which he was on trial.

There are several bills in the record in which it is shown that appellant directly and indirectly sought to introduce in evidence what he told Deputy Sherilf Wright and Constable Crouch about how the difficulty arose. There is no suggestion that such conversation was res geste of the transaction; in fact, the record shows affirmatively it was not, and under such circumstances his sell-serving declarations were properly excluded by the court, as well as the reply of defendant on the day after the killing, when Deputy Sheriff Wright told him about his shooting his wife. As stated by the court in approving these bills, appellant had had many hours for reflection, and ample opportunity to plan and conceive these self-serving declarations, and under such circumstances there was no error in the ruling of the court. The fact that he had been warned tnat- what he said might be used against him would not render such statement admissible in his behalf when the state had not elicited nor sought ,to elicit any part of such statements. Walker v. State, 13 Tex. App. 618, 44 Am. Rep. 716, note; Wharton’s Orim. Law (10th Ed.) § 1425.

Randolph Murray was a witness for the defendant, and had testified to material facts in his behalf, had denied that appellant ran his wife around the house, and there shot her, and had testified to facts supporting appellant’s contention that the shooting of his wife was accidental. Under such circumstances it was permissible for the state on cross-examination to ask if he had not on the day of the shooting told Lee Lamb and George Eerrell “that appellant chased his wife around the house, shot at her, and ran and jumped the fence, and then turned and shot again,” and, when he denied having so stated, it was also permissible for Lee Lamb and George Eerrell to testify that Randolph Murray had so told them. It is always permissible, as tending to impeach a witness, either for the state or defendant, to show that they had made different statements from what they testified on the trial on a material matter. Campos v. State, 50 Tex. Cr. R. 292, 97 S. W. 100, and cases cited in section 871, Branch’s Crim. Law.

The alleged newly discovered testimony of Ira B. Smith would not tend to discredit the testimony of Horace Womack. He does not claim to have been with Womack at the time the shooting took place, but says in the affidavit he (Smith) was in Lee Lamb’s house, and therefore he could not and does not claim to know where Womack was at that time. The fact that Womack did not tell him what he saw of the shooting, when he saw him after the shooting, would in no way tend to discredit Womack. And neither is the testimony of Dr. Milner contradictory of any testimony had on the trial, but such testimony would show that appellant’s wife was shot on that Sunday, as she says she was, and would tend strongly to contradict the testimony of the defendant that the shooting was accidental, instead of supporting his theory of the case. The doctor says he was called to see the woman, and she was shot in the side of the neck iy2 or 2 inches from the median line on the center of side of neck; that it struck a bone, and came out in the back of the neck and a little to one side of the center of the neck. Louise Gyrus testified that appellant ran her, and “caught her by the collar, and put the pistol down my neck and fired,” and she fell. There would be contradiction in this testimony, and while some of the witnesses may have used the expression that appellant shot his wife in the back of the neck, when the ball is shown to have entered at least 1% inches from the center of the side of the neck, this would not. be conflicting. Many, in describing a wound, would thus speak of it, when it was that far to the rear. The testimony of the doctor would add no strength to the testimony of the defendant, nor detract any from the testimony offered by the state, but, on the other hand, would tend to strengthen the state’s testimony, and the court did not err in refusing to grant a new trial on account of this-alleged newly discovered testimony.

In the motion for new trial it is alleged that this case was called out of its regular order. If so, no bill of exceptions was reserved to such action; therefore it is not presented in a way we can review it. In overruling the motion for a new trial, the court appends a statement as to this matter, and shows conclusively it was not called out of its regular order.

Finding no error in' the record, the judgment is affirmed.


text:
    WHITFILL v. STATE.
    (No. 3179.)
    (Court of Criminal Appeals of Texas.
    June 24, 1914.
    Rehearing Denied Oct. 14, 1914.)
    1. Burglary (§ 46) — Instructions — Defenses,
    On a trial for stealing a harness found in accused’s possession, and which he claimed to have purchased from a trader, instructions that if the harness was bought by him from a trader, or if the jury had a reasonable doubt thereof, to acquit accused, and that if they believed that he bought the harness from a trader, or from any person, or got it from any person other than by acting in connection with M. and breaking and entering the barn of the prosecuting witness, to acquit accused, submitted accused’s defensive plea in a very favorable light, and he could not complain thereof.
    [Ed. Note. — For other eases, see Burglary, Cent. Dig. §§ 6, 69, 82; Dec. Dig. § 46.]
    2. Criminal Law (§ 596) — Continuance-Absent Witnesses — Materiality of Testimony.
    On a trial for burglary, M. testified that he and accused committed the burglary. Accused moved for a second continuance, because of the absence of a witness who would testify that M. was at her home during a certain period, “and that she heard of the burglary, * * * and that at said time said M. was at her house, and not with defendant.” The husband of sucb absent witness testified that M. was in and out of his place, but also stayed at other places, and was at times at accused’s. Helé, that the denial of a continuance was not error, it not appearing that the witness would testify that M. was at her house at the time of the burglary, but only at the time when she heard of it, and it not being probable that her testimony would ■have been any more definite than that of her husband, and a second continuance will not be granted to secure cumulative testimony.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1328-1330; Dec. Dig. § 596.]
    3. Criminal Law (§ 722%) — Witnesses 337*) —Argument of Counsel — Evidence Admitted for Particular Purpose —Credibility of Witness.
    While on a criminal trial evidence of an indictment against accused for another offense was admissible to affect his credibility as a witness, it was highly improper for the county attorney, in his argument, to state that it was a strong circumstance to show guilt.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1675; Dec. Dig. § 722%; Witnesses, Cent. Dig. §§ 1113, 1129-1132, 1140-1142, 1146-1148; Dec. Dig. § 337.]
    4. Criminal Law (§ 728) — Appeal—Reservation of Grounds of Review — Improper Argument.
    Where at the time the county attorney stated to the jury in his argument that an indictment against accused for another offense was a strong circumstance to show guilt, accused’s counsel approached the judge and asked that an exception be reserved, but on being told by the judge, who had not heard the remark, to make his objection openly in court, declined to do so, and asked no special charge, he could not complain of such argument, especially where the court did charge that, if the jury believed that accused was under indictment for another offense, they could consider that only for the purpose of aiding in determining the credibility of accused as a witness, and must consider it for no other purpose.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. ¡¡§ 1689-1691; Dec. Dig. 728.]
    Appeal from District Court, Ellis County; F. L. Hawkins, Judge.
    J. W. Whitfill was convicted of burglary, and he appeals.
    Affirmed.
    W. H. Fears, of Waxahachie, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Willie Joley lost a set of harness, which was stolen from a barn on Kelly’s place. A search warrant was secured, and a set of harness identified by Joley as his harness was found in the possession of appellant; the hames being found above the ceiling in his residence. Appellant at the time, so a state’s witness says, claimed that he had bought the harness from a hardware dealer in Ennis named Johnnie Mays. On the trial of this case appellant denied saying he got the harness from Mays, and testified he bought the harness and a horse from a trader traveling through the country in a covered wagon. He did not know the name of the man, and said he had never seen him before, but had seen him once since he made the trade, on the streets In Dallas, but did not now know where he was, and that he had never had any process issued for him.

Among other things, the court instructed the jury:

“If you believe the harness claimed by Willie Joley was bought by defendant from a trader, or if you have a reasonable doubt thereof, you will acquit the defendant.”

He also gave, at the request of appellant, the following specie! charge:

“You are further instructed that if you believe from the evidence that the defendant bought the harness from a trader, or from any person, or that he got them from' any person other than by acting in connection with John Mason, and breaking and entering Willie Joley’s barn, then you will acquit the defendant.”

Thus'it is seen that the defensive plea of defendant was submitted by the court to the jury in a very favorable light, and appellant’s complaint in regard thereto is without merit.

There were no bills of exception reserved to the introduction of testimony, but appellant complains the court erred in refusing to grant his application for a continuance. The record discloses it to be his second application, a continuance having been granted once by agreement, to be charged to defendant, to keep the witnesses from having to come to court at a time when it could not be tried. McKinney v. State, 8 Tex. App.. 626. He desired to continue the case on account of the absence of Mrs. Alice Whitfill, whom he alleges was sick and unable to attend court. He states he expects to prove by Mrs. Whitfill:

“That one John Mason, who was also indicted, charged with this same offense, has turned state’s witness under a promise of immunity, so defendant had been informed, and has promised on the trial of this cause to testify that he was with defendant at the time of the alleged burglary of Willie Joley’s house, and that he saw defendant break and enter said house and steal a set of harness, and that the harness found in defendant’s possession was the harness stolen. That he expects to prove by Mrs. Alice Whitfill that she knows John Mason, and during most of the month of January and a part of February, 1913, said John Mason was at her home, about 2% miles from defendant’s home, and that she heard of the burglary of the home of Willie Joley, and that at said time said John Mason was at her house, and not with defendant at all, and could not have seen defendant break or enter said house.”

It may be stated that John Mason did testify as a witness for the state, and testified that he and appellant burglarized the barn and stole the harness, and the harness identified by Joley, which was found in appellant’s possession, was in fact the harness of Joley. It is seen that appellant states he expects to prove by Mrs. Alice Whitfill that Mason was staying at her house at the time she heard of the burglary, and, if he was at her house at the time the harness was stolen, he, of course, could not have been with appellant and assisted him in committing the burglary and theft. Mrs. Whitfill’s husband was in attendance on court and testified in the case, and while he testified that about this time John Mason was in and out of his place, yet he also stated that Mason at times was at Alma, and other times would go over to appellant’s and stay there. Under such circumstances we cannot say that the court erred in overruling the application. It is shown by all the testimony that John Mason stayed a part of the time at Dick Whitfill’s, and a part of the time at appellant’s, J. W. WhitfiU’s. All he states he expects to prove by this witness is that at the time she heard of the burglary Mason was at her house. He does not state she will testify that Mason was at her house at the time of the burglary, .but only when she heard of it. This may be absolutely true, and also the testimony of Mason may be true; and it is hardly probable that her testimony would have been any more definite than that of her husband, and if her testimony is only cumulative of that of her husband, a second application for a continuance will not be granted to secure cumulative testimony. Harvey v. State, 35 Tex. Cr. R. 545, 34 S. W. 623.

Appellant took the stand and testified in his own behalf, and denied burglarizing the house and stealing the harness. On cross-examination he was asked if there was another indictment pending against him, charging him with burglary. It has always been held that such testimony is admissible for the purpose of affecting his credit as a witness. However, in the bill of exceptions it is shown that the county attorney in his argument, among other things, stated:

“You heard the defendant on the witness stand admit that there was pending against him another indictment charging him with burglarizing the store of T. J. Kelsey, right in the same neighborhood. That in itself is a strong circumstance to show his guilt in this case.”

This argument was highly improper. The testimony was not admissible as a circumstance to show his guilt in this case. An indictment did not even tend to show his guilt in that case, much less his guilt in this case; and if appellant had reserved his exception to this remark properly, and submitted a charge requesting the court to instruct the jury that such testimony did not tend to show the guilt of appellant in this case, and the remarks of the county attorney were improper, and they should not consider same, and the court had refused the charge, we would reverse the case because of such conduct. The bill, however, shows that when the remarks were made the defendant’s attorney approached the presiding judge and stated that he wanted to reserve an exception to the remarks of the county attorney, that the court was busy with some other matter and did not hear the remarks, and stated to counsel that if he desired to object to the argument to go in front of the bar and do so, that he hardly thought it proper for him of his own motion to stop the county attorney, and preferred that appellant’s counsel make his objection openly in court. This appellant’s counsel declined to do, and in addition thereto asked no special charge in regard to the matter. Under such circumstances the bill does not present reversible error. When the court stated to counsel that he had not heard the remarks complained of, and requested counsel to make his objection openly, he should have done so.

We do not mean to be understood that, if the court knew counsel for the state was making improper remarks, he should not have stopped him, whether objected to or not. It is the duty of trial judges to see that trials are had, fair alike both to the state and defendant, and when any counsel uses improper argument in an attempt to secure either a conviction or acquittal, he should be promptly stopped by the judge, and the jury admonished not to consider such improper argument, and a judge who fails to do so is hardly doing his whole duty when he knows that improper argument is being used. However, in this instance, the court says he was busy at some other matter and did not hear the remarks, and, if so, it was not an improper request to ask that counsel make his objection openly in court. Even if counsel did not desire to do so, certainly it was his duty to request a proper charge instructing the jury in regard to the matter. If he does not do so, he will not be heard later to complain. The court in approving the bill says that, although counsel did not ask any charge in regard to the matter, on account of the complaint made to him by counsel, he voluntarily instructed the jury as follows:

“If you believe from the evidence that the defendant is now under indictment in this court, charged with burglarizing the store of Tom Kelsey, you are instructed that, if you consider such circumstances at all, it could only be for the purpose of aiding you in determining the credibility of the defendant as a. witness (if it does so aid you), and you must consider it for no other purpose whatever.”

We must consider jurymen impaneled in court as reasonable beings, and after they received this instruction we would be compelled to hold that they ignored the charge of the court, without any proof thereof, to give appellant any relief. There is no suggestion in the record that any of the jurymen in fact considered the testimony for any other purpose than as instructed by the court. However, we will state that prosecuting counsel are never authorized to seek to use testimony admitted for one purpose for a wholly different purpose, and if the record disclosed that any juryman was led, by the improper use of this testimony in argument, to utilize such testimony in passing on the guilt of appellant, we would promptly reverse the ease.

The judgment is affirmed.


text:
    SCHAPIRO v. STATE.
    (No. 3176.)
    (Court of Criminal Appeals of Texas.
    June 17, 1914.
    On Motion for Rehearing, Oct. 14, 1914.)
    1. Indictment and Information (§ 79)— Requisites and Sufficiency — Clerical Errors — Surplusage.
    The validity of a complaint and information, alleging that accused unlawfully pursued the occupation of a pawnbroker without a license, and averring that the taxes due by him to the state for the occupation amounted to $150, and that the taxes due the county on the occupation amounted to $75, and that the taxes due the county had been “therefore” duly levied by the commissioners’ court of the county, is unaffected by the inadvertent use of the word “therefore” in place of “theretofore,” which must be regarded as surplusage.
    [Ed. Note. — For other eases, see Indictment and Information, Cent. Dig. §§ 209-214; Dec. Dig. § 79.]
    2. Pawnbrokers (§ 11) — Offenses—Acting without License — Pleadings.
    Under Rev. St. 1911, art. 7355, imposing an annual occupation tax on pawnbrokers, and article 7357, empowering the commissioners' courts of the several counties to levy for county purposes one-half of the occupation taxes levied by the state, and Pen. Code 1911, art. 130, punishing any person pursuing any occupation taxed by law without obtaining a license therefor, a complaint and information, which alleges that accused unlawfully pursued the occupation of pawnbroker, which occupation was taxable by law, without obtaining a license therefor, and which avers that the tax due the state was $150, and that the tax due the county was $75, and that the tax due. the county had been levied by the commissioners’ court, is sufficient without alleging that the commissioners’ court had entered the order fixing the county tax, and without alleging that accused loaned money, received deposits as security for the payment of loans and interest on personal property, and what property he took as security and to whom he made loans.
    [Ed. Note. — For other cases, see Pawnbrokers, Cent. Dig. § 7; Dec. Dig. § 11.]
    3. Criminal Law (§§ 1092, 1099) — Statement of Facts — Bill of Exceptions — Time of Filing.
    A statement of facts not filed until 63 days after the adjournment of the term of the county court, and a bill of exceptions not filed until 69 days after adjournment, cannot be considered on appeal.
    . [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2866-2880, 2919; Dec. Dig. §§ 1092, 1099.]
    On Motion for Rehearing.
    4. Pawnbrokers (§ 11) — License — Statutory Provisions.
    Rev. St. 1911, art. 6155 et seq., declaring what pawnbrokers shall do when receiving an article in.pledge, and what they shall do when they sell it, and Pen. Code 1911, art. 641, punishing a pawnbroker violating the law in either receiving or selling a pledged article, do not fix the liability of a pawnbroker pursuing the occupation without first obtaining a license, but his liability is determined by Rev. St. 1911, arts. 7355, 7357, and Pen. Code 1911, art. 130.
    [Ed. Note. — For other eases, see Pawnbrokers, Cent. Dig. § 7; Dec. Dig. § 11.]
    Appeal from Bexar County Court; J. R. Davis, Judge.
    •Harry Sehapiro was convicted of pursuing the occupation of a pawnbroker without obtaining a license, and he appeals.
    Affirmed.
    Emmett B. Cocke, of San Antonio, for appellant. C. E. Lane, Asst. AttV. Gen., for the State.

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

   PRENDERGAST, P. J.

The complaint and information aver that on or about October 19, 1913, appellant in Bexar county, “did then and there unlawfully engage in, pursue, and follow the occupation of a pawnbroker, the said occupation being taxable by law, without first obtaining a license therefor; and the taxes then and there due by him to said state, upon said occupation amounted to $150; and the taxes then and there due by him to said county upon said occupation amounted to $75; the said taxes due the said county having been therefore [theretofore] duly levied by commissioners’ court of said county contrary to the form of the statute.” It' is certain the word “theretofore” was intended where “therefore” is used above, and the inadvertence cannot affect the validity of the pleading. Besides “therefore” could and should be regarded as surplusage. Herrington v. State, 166 S. W. 722, and cases cited.

Article 7355, Revised Civil Statutes, enacts that there shall be levied on and collected from every person pursuing the occupations named in the following subdivisions of this article an annual occupation tax which shall be paid in advance: Subdivision 23 says,.“from every pawnbroker an annual tax of $150.” Article 7357 expressly gives the commissioners’ courts of the several counties power to levy for county purposes one-half of the occupation taxes levied by the state. Article 130, P. C., makes it an offense for any person to pursue or follow any occupation taxed by law without first obtaining a license therefor; the penalty prescribed being not less than the amount of taxes, nor more than double that sum.

The pleadings follow the statute, and are in strict conformity to the forms laid down by both Judge White and Judge Wilson in their Ann. O. C. P. So that appellant’s motion to quash the pleadings because the same did not contain an allegation that the commissioners’ court of said county had duly entered an order fixing the county tax at one-half that of the state was properly overruled. The pleading did not have to allege that the order was duly entered. Nor was the pleading bad because it is claimed it only alleged conclusions. It alleged the facts. Nor did the pleading- have to allege that appellant lent money, received deposits as security for the payment of loans and interest on personal property; nor the rate of interest he charged, what property he tools as security, and to whom he made such respective loans. None of this had to be alleged in the pleading. The cases cited by appellant of Crews v. State, 10 Tex. App. 292, and Woolsey v. State, 14 Tex. App. 57, are not in point..

The term of the county court at which this conviction, was had adjourned February 28, 1914. The statement of facts was not filed until 63 days later, and the bills of exceptions 69 days after adjournment. The state’s motion to strike out and not consider them must, therefore, be sustained. Durham v. State, 155 S. W. 222; De Friend v. State, 153 S. W. 881; Stephens v. State, 158 S. W. 531, 532; Wilson v. State, 160 S. W. 454; Hampton v. State, 161 S. W. 966; Newsome v. State, 162 S. W. 891; and a great many other eases. ’

No other-question is raised which can be considered in the absence of bills of exception, or statement of facts. The judgment is affirmed.

On Motion for Rehearing.

Appellant urges that this prosecution cannot be maintained on article 130, P. C., and articles 7355 and 7357, R. S., but if maintained at all, it must be under article 641, P. C. In this he is clearly wrong. Article 641, P. C. is:

“If any pawnbroker, or person doing any business as such, shall receive any article m pledge, or' sell the same without complying with the laws regulating pawnbrokers in this state, he shall be punished by fine not less than twenty-five dollars nor more than one hundred dollars.”

This article was based on title 103, arts. 6155 et seq. of our Revised Statutes. The Revised Statutes specifically enact what pawnbrokers shall do when they receive an article in pledge, and what they shall do when they sell it, and this article, 641, makes it an offense if the pawnbroker violates that law in either receiving or selling the pledged article, and has no application whatever to the question of the payment of an occupation tax. That is exclusively regulated by the articles of the Code and Revised Statutes, as shown in the original opinion.

The motion for rehearing is overruled.


text:
    CLARK v. STATE.
    (No. 3186.)
    (Court of Criminal Appeals of Texas.
    June 24, 1914.
    Rehearing Denied Oct. 14, 1914.)
    1. Criminal Law (§ 829) — Instructions— Request — Refusal.
    In a prosecution for the unlawful sale of intoxicating liquors, where the court charged to acquit if it was found that the prosecuting witness secured the liquor from the place where defendant worked without the knowledge or consent of defendant, or in any other way except by purchase from the defendant, or if there was any reasonable doubt about it, it was not error to refuse a requested charge directing an acquittal if the jury found the liquor was procured in the manner in which the defense claimed the liquor was procured.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dee. Dig. § 829.]
    2. Criminal Law (§ 1091) — Appeal—Bill of Exceptions — Evidence.
    In a prosecution for the unlawful sale of intoxicating liquors, a bill of exceptions, showing that the prosecuting witness was allowed, over objection, to state how long it was after he had purchased the liquor that he told the prosecuting attorney about it, when qualified by the court to show that the defendant’s contention was that the prosecuting witness was so intoxicated that he could have had no recollection of the transaction, shows no error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2S24, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.]
    3. Criminal Law (§ 686) — Trial—Order of Testimony — Discretion of Court.
    It is not an abuse of the court’s discretion, as to the order in which the witnesses are introduced, to permit the prosecution to rest before the testimony of an absent witness was heard and to permit the witness to testify on his appearance after the defense had begun its evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1619, 1620, 1625, 1626; Dec. Dig. § 686.]
    4. Witnesses (§ 410*) — Credibility—Intoxication of Witness.
    Where one accused of the unlawful sale of intoxicating liquor contended that the prosecuting witness was so intoxicated as to have no recollection of the transaction, the prosecution may introduce evidence that the witness, although somewhat Under the influence of liquor, was not drunk.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1284; Dec. Dig. § 410.]
    5. Witnesses (§ 287) — Redirect Examination-Scope.
    Where the defense had attempted to show, in cross-examination of a witness for the prosecution, that the witness was a spotter or detective, the state on redirect examination can show that the witness was a bonded deputy sheriff.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 930, 1000-1002; Dee. Dig. § 287.]
    6. Intoxicating Liquors (§ 226) — Admissibility of Evidence — Disposition of Liquor Purchased.
    In a prosecution for the unlawful sale of intoxicating liquor, it was not error to permit the prosecuting witness, who had testified that he bought the liquor for two other persons, to testify that after making the purchase he gave it to one of those persons, who shared it with the other.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 282-286; Dec. Dig. § 226.]
    7. Criminal Law (§ 730) — Trial-Reception of Evidence — Objection to Question.
    In a prosecution for the unlawful sale of intoxicating liquor, the questioning of defendant as to whether he did not, shortly before the alleged sale, get off a train with liquor and get into a closed carriage and drive away rapidly was not reversible error, where objection to the question was sustained.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1693; Dec. Dig. § 730.]
    8. Intoxicating Liquor (§ 233) — Evidence —Possession of Liquor.
    In a prosecution for the unlawful sale of intoxicating liquor, the state may cross-examine the defendant as to the number of times within the last six months or a year he had gone away and brought back with him intoxicating liquors, for the purpose of proving that he had, from time to time, procured and had on hand such liquor.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 293-297, 298%; Dec. Dig. § 233.]
    9. Criminal Law (§ 925%) — New Trial-Misconduct of Jury — Reference to Extrinsic Facts.
    In a prosecution for the unlawful sale of intoxicating liquor, a question asked by one juror of another during their deliberation, whether defendant was the man who had a fight with the deputy sheriff, which question was answered in the affirmative, does not entitle the defendant to a new trial, where the evidence showed that some of the jurors did not hear the question and all of the jurors stated that it had no influence upon the verdict.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2248-2253; Dec. Dig. § 925%.]
    Appeal from Special District Court, Gray-son County; W. J. Mathis, Judge.
    Charley Clark was convicted of unlawfully selling intoxicating liquor, and he appeals.
    Affirmed.
    Jones & Hassell, of Sherman, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, P. J.

Appellant was convicted for making an unlawful sale of intoxicating liquor in Grayson county, after the law prohibiting the sale thereof was in force making it a felony, and his punishment assessed at one year in the penitentiary.

The evidence in behalf of the state clearly showed an unlawful sale by him at the time charged in the indictment. The case was tried in February, 1914. No complaint was made to the charge of the court It is full and correct, submitting every issue properly raised by the evidence.

Appellant claims the court erred in refusing to give his special charge, to the effect that if the jury believed that Will Travis, the prosecuting witness, sold or agreed to sell alcohol to a horse trader, and pursuant to such sale or agreement he took the empty bottle of said person and went to defendant’s shop where he worked, and himself procured alcohol from a bottle of alcohol used by defendant for the purpose of bathing his ankle, or if they had a reasonable doubt of it to acquit him. In no contingency should this charge have been given. The issue attempted to be presented by this special charge was fully and more completely covered by the court’s charge in his favor to this effect: If you believe from the evidence that Will Travis procured the alcohol in question from the office in Bert Clark’s blacksmith shop without the knowledge or consent of defendant, or if you believe the said Travis obtained said alcohol in any other way than the purchase of same from defendant, or if you have a reasonable doubt about, this, you will acquit him/

Appellant has several bills of exceptions to the asking and answering of several questions by different witnesses. As a sample of one of them, his second bill, after the usual heading, is:

“While the prosecuting witness, Will Travis, was on the stand, and after he had testified, in substance, that he bought alcohol from the defendant, he was asked by state’s counsel the following question: ‘How long after that occurred, Will [that is, the transaction between the prosecuting-witness and defendant], was it when you told me about this matter, made a statement to me?’ To which the defendant objected as leading and suggestive, argumentative, hearsay, a transaction between third persons not shown to have been in the presence of defendant,’ and not binding upon him, and an effort to corroborate and bolster up his own witness by a hearsay statement and transaction, which objection was by the court overruled, and the witness was permitted to answer and did answer, ‘About 15 or 20 minutes! To which action of the court in overruling said objections and admitting said evidence, defendant in open court excepted, and presents this his bill of exceptions thereto.”

The court, in allowing the bill, qualified it as follows:

“It being defendant’s contention that the prosecuting witness was so imoxicated as that his recollection of the matters under inquiry would be entirely improbable, the court admitted this testimony as tending to show the condition of said prosecuting witness.”

This bill, like all of his others, is insufficient to be considered or show any reversible error. James v. State, 63 Tex. Cr. R. 75, 138 S. W. 612. But if considered, as qualified by the court, it shows no error.

By another bill it is shown that after the state had introduced the prosecuting witness and other testimony, the county attorney announced to the court that one of his witnesses was then absent, but he would introduce him when he came in, and then rested. Appellant complained of this and of being required to proceed with his testimony, and that later when this witness arrived the court permitted the county attorney to introduce him and have him testify. This shows no error whatever. The order in which the witnesses are introduced is a matter in the discretion of the court, and this shows no abuse of discretion by the court.

There was no error in the court permitting the witnesses, over appellant’s objection, to testify that the prosecuting witness, while under the influence of liquor, was not drunk at the time he claimed to have bought the alcohol from appellant. Stewart v. State, 38 Tex. Cr. R. 627, 44 S. W. 505; Branch’s Crim. Law, 347. The court qualified his bills on this subject by stating that the defendant contended that the prosecuting witness, Travis, was drunk at the time of the alleged sale, and that his condition was such as to make his recollection of events during that part of the day- improbable. The court admitted the testimony as bearing on the condition of the prosecuting witness at the time.

There was no error in permitting the state, in redirect examination of one of its witnesses, to prove by him that he was a bonded deputy sheriff. The appellant had attempted to show, in cross-examination of him, that he was a kind of spotter or detective on pay.

Even if we could consider it, appellant’s bill, objecting to the prosecuting witness testifying that, after he bought the alcohol from appellant, he- at once gave it to Gudgel, who divided it between himself and another fellow, the witness having testified that he bought the alcohol for these two persons, shows no error.

The state showed that appellant was in the habit ,of going off and bringing back considerable quantities of whisky and alcohol, and attempted to prove by him if he did not, just a .day or two before the occasion of this alleged sale, hurriedly get off of a train with liquor and get into a closed carriage and drive off rapidly. He objected to this, and the court sustained his objection. This presents no reversible error.

Nor was there any error in the court permitting the state, in cross-examination of appellant, to have him testify how many times he went to Dallas within the last six months or year and .procured and brought back with him intoxicating liquors. The state in cases of this kind is always permitted to prove that the accused from time to time procured.and had on hand intoxicating liquor. However, the court, in qualifying appellant’s bill on this subject, stated that the testimony of the witness tended to refute the charge for which he was on trial.

One ground of appellant’s motion for new trial is that when the jury went out to consider their verdict, about the middle of one evening, they stood six to six for some time; that afterwards, it is claimed the jury discussed the fact that appellant bad had a row or fight on some other occasion with a deputy sheriff. The court heard evidence on that motion, and, briefly stated, it shows that some one’ of the jurors inquired of another if appellant was the man -who had had the row or fight with a deputy sheriff, or if it was a barber by the name of Charley somebody, and the answer was made that appellant was the man instead of the barber. Some of the jurors claimed to have heard this; others that they did not beaf anything said about the matter; that it was not used as an argument, and did not have the effect to cause his conviction. The court, in allowing the bill on this subject, qualified it by stating that several of the jurors disclaimed any knowledge of the occurrence, and all of them insisted that the matter hád nothing to do with the verdict. The court did not err in refusing to grant a new trial on this ground. See Coffman v. State, 165 S. W. 946, and cases therein cited.

The judgment is affirmed.


text:
    BROWN v. STATE.
    (No. 3196.)
    (Court of Criminal Appeals of Texas.
    June 26, 1914.
    Rehearing Denied Oct. 14, 1914.)
    1. Criminal Law (§ 448) — Evidence—Opinion op Witness.
    A witness, who stated the distance from her home to the store burglarized and the time elapsing after accused had left her at her home until shots were fired, could not give her opinion as to whether accused could have reached the store after leaving her, but that question was for the jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1035-1039, 1041-1043, 1045, 1048-1051; Dec. Dig. § 448.]
    2. Cbiminai, Law (§ 885) — Instructions— Punishment — Recommendation op Suspension op Sentence.
    Where the court gave the jury a form of verdict in case they found accused guilty and desired to recommend a suspension of sentence and a form in case they did not desire to so recommend, the action of the jury in adopting the latter form was a specific finding that they did not recommend suspension of sentence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2108; Dec. Dig. § 885.]
    Appeal from District Court, Lee County; Ed. R. Sinks, Judge.
    Charles Brown was convicted of burglary, and he appeals.
    Affirmed.
    Chas. Brown, pro se. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

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

Sheriff Scarborough and J. M. Clark positively identify appellant as the person who entered Clark’s store and attempted to open his safe. His testimony, and the testimony of Mrs. Schroeder and Miss Schroeder would tend to prove an alibi and render it impossible for him to have been the person who committed the burglary.

While Miss Laura Schroeder was testifying, appellant propounded to her the following question:

“Could it have been possible for the defendant to have been the person in Clark’s store, and could defendant have possibly reached Clark’s back door in the space of time intervening between the time he left the room where you were sitting and the time the shots were fired by the sheriff?”

The state objected on the ground that this called for the opinion of the witness, and the court sustained the objection. When the witness had stated the distance from her home to Clark’s store and the length of time elapsing after he had left the room where she was sitting until the shots were fired, the jury was as capable of judging whether or not sufficient time had elapsed for him to have gone to the store and entered as was the witness, and there was no error in the ruling of the court. Of course, appellant’s counsel in his argument so insisted, but the jury finds against such contention, and the opinion of the young lady was not admissible.

The court instructed the jury as to the form of their verdict in case they found appellant guilty and desired to recommend a suspension of sentence, and the form in case they did not desire to so recommend. They adopted the latter form, and this was a specific finding that they did not recommend a suspension of sentence.

The judgment is affirmed.


author: DAVIDSON, J.

text:
    O’FALLIN v. STATE.
    (No. 3182.)
    (Court of Criminal Appeals of Texas.
    June 24, 1914.
    On Motion for Rehearing, Oct. 21, 1914.)
    1. Criminal Law (§ 958) — New Trial — Grounds — Newly Discovered Evidence.
    Where, in a prosecution for burglary, a shirt worn by accused and identified as having been taken from the burglarized house was used to connect him with the burglary, an application for a new trial on the ground that accused could prove by his mother that the shirt had been used by him prior to the burglary, not verified by the mother’s affidavit as to the fact, and not shown to have been newly discovered evidence, was properly denied.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2396-2403; Dec. Dig. § 958.]
    On Motion for Rehearing.
    2. Burglary (§ 42) — Stolen Property — Recent Possession. ■
    Where the state relies for conviction of burglary only on recent possession of stolen property by accused to connect him with the burglary, such possession must be exclusive, or possession by accused and others who may have been connected with the burglary.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 94-103, 109; Dec. Dig. § 42.]
    3. Burglary (§ 41) — Evidence.
    Evidence field to sustain a conviction of burglary of a storehouse.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 94-103, 109; Dec. Dig. § 41.]
    Appeal from District Court, Leon County; S. W. Dean, Judge.
    Ben O’Fallin was convicted, of burglary, and he appeals.
    Affirmed. Rehearing overruled.

      Jas. T. Ryan, of Centerville, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, J.

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

The motion for new trial alleges as one of its grounds that appellant could prove by bis mother that the shirt worn by appellant and identified as taken from the burglarized bouse bad been used by him prior to the commission of the alleged burglary. There is no affidavit of the mother to that fact, nor is it shown that it was newly discovered testimony. It is simply made a ground of the motion for new trial. As thus presented, it does not come within the rule laid down for granting new trial to secure this character of testimony. He must have known long before the trial the facts set up, and, if true, they could have been shown Dy his mother.

The remaining ground of ' the motion alleges the insufficiency of the evidence. There is no direct proof that appellant broke and entered the alleged burglarized house. There is positive evidence of the fact that somebody did and carried away quite a lot of property. Appellant was found in possession of some of the stolen property, which was identified by the. alleged owners as being property taken from the burglarized house. Under the circumstances, we are of the opinion that the evidence, though circumstantial, is sufficient to justify the verdict of the jury. Appellant was wearing a shirt, subsequent to the burglary, which was identified by the parties as having come out of their house. At the place where appellant resided, being his father’s residence, there was quite a lot of this stolen property found. The brother and father of the defendant were placed upon the stand and denied having anything to do with the property or knowledge of its being there. It was secreted in the upper part, or what the witnesses called the “loft,” of the house. This property was identified as coming from the burglarized house. Flight was shown, and appellant arrested on the train-leaving the county, and denied his name and identity. These are some of the circumstances of the case. As before stated, although the evidence was circumstantial, we think it fully meets the requirements of the law in cases of this character.

The judgment is affirmed.

On Motion for Rehearing.

The judgment herein was affirmed just before the adjournment of the term last June, and appellant filed a motion for rehearing mainly upon the theory that the testimony is not sufficient to support the conviction. The theory of the motion is that, inasmuch as the evidence does not show that the goods taken from the burglarized house, found in appellant’s father’s residence, were exclusively in appellant’s possession, it is not sufficient- to show that he was the party who burglarized the house; that is, his connection with the goods was not sufficiently shown. The case was disposed of before upon the theory that it was a ease of circumstantial evidence, and that the circumstances were sufficient to show that he was the party who burglarized the house.

Appellant asserts a correct proposition of law, and one to which the writer agrees fully; that is, where the state relies for a conviction only upon recent possession of the stolen property to connect him with the burglary, that possession must be an exclusive possession, or possession by himself and others who may have been connected with the burglary. The state’s case does not rely or stand upon that theory, as we understand this record.

The evidence shows that on Friday night a storehouse of Cozart Bros, was burglarized. It shows without contradiction that this occurred Friday night, and that on Saturday a search warrant was sued out and the residence of appellant’s father searched, and the goods found secreted in a loft in the residence. When the parties decided to make the search, they secured a search warrant and informed the defendant of the fact that they were going to search the house for the goods taken from the burglarized house, and asked him for his trunk key, which he gave them. He was then put upon notice that this house would be searched for the stolen goods. He then took the train for Galveston. After investigating the house and finding the goods, the officer, at the place where the burglary occurred, wired to the constable at the station called Shiro to arrest Ben O’Fallin, giving a description of him. When the train reached Shiro, the constable went aboard the train and told him that he was hunting for him. Appellant denied his name and gave another name. The officer insisted that his name was Ben O’Fallin, which he denied. When finally he saw he was to be arrested for the burglary, he stated to the officer he was not the man they wanted, but that it was his brother. Appellant’s brother was named Earl O’Fallin. Appellant was taken back to the place of the burglary the next day. The goods found were fully identified as being the goods coming out of the burglarized house. It is unnecessary to go into detail as to how the burglary was committed and incidental matters.

When appellant was notified of the intended search of his house, after giving the key to the officers, he went to his brother Earl at a drug store and had a conversation with him, and returned to the train and boarded it. Earl then preceded the officers to the house where the goods were found. Earl O’Fallin testified that he had nothing to do with the burglary or stolen goods, and knew nothing about them, and was not aware of the fact they were in the house where found. The father of appellant also testified that Earl O’Fallin did not live at his residence, but was living at the place of Mr. Woodford, with whom he had lived that year and made a crop. The father of appellant further testified that he knew nothing of the goods or how they got into his house; that they were put in the house without his knowledge or consent; that on the particular night and some nights previous, and perhaps subsequently, he and his family attended a Methodist protracted meeting and were away until 10 or 11 o’clock at night. The defendant lived at the house with his father. His father and Ben were the only male persons of any size who were living at the place. About two weeks after this, at the depot one Sunday evening, the Cozart brothers and others were at the depot and discovered that appellant had on a shirt that came out of their house. There was another young man present who also had on a shirt that the Cozart brothers say they had sold him, but that they had not sold the shirt to defendant which he was wearing. They had the shirt examined, and identified it as their property, or property that had come out of their house. They further stated they had never sold appellant any shirts. The officer who arrested him at Shiro stated that he read to him the telegram from the officer at the point of the burglary, and informed appellant then that he was an officer. The officer who sent the telegram thus describes it:

“After that I turned the goods over to them (meaning Cozart Bros.). Then I went over to the depot and sent a telegram to Shiro to the constable, Mr. Mooring, describing Ben O’Fal-lin, and told him he would be on that train. I told him to arrest him and keep him there; that I had an indictment against him for burglary; and that I would come down on the next train after him. I went down there and got Ben O’Fallin and brought him back.”

This telegram was read to appellant at the time of his arrest. So when appellant denied his identity and gave the other name, and finally told the constable they wanted his brother, he knew the purpose for which he was being arrested.

Without going further into the details of this transaction, we are of the opinion that the circumstances are sufficient to show that appellant was guilty of the burglary, and his connection with it and possession of the goods and of the shirt especially were sufficient. The rule of exclusive possession of property is not always the criterion; it is sufficient if the facts and circumstances show that appellant was the guilty party to the exclusion of the reasonable doubt. Each case must depend upon its own facts connecting the party with the crime charged. If the state relies only upon the fact of possession, then it must be exclusive and unexplained. He may be convicted as well upon circumstantial evidence, where the evidence excludes every reasonable hypothesis except that of guilt, and we are of the opinion that the evidence is sufficient to show that he was the party who entered the house. In fact, if he had been charged with theft of the goods, we are of the opinion this evidence would have sustained the conviction for that offense.

So believing, we overrule the motion for rehearing.