source: Caselaw Access Project

author: HARPER, J. DAVIDSON, J. HARPER, J.

license: Public Domain

text:
    HARRIS v. STATE.
    (No. 3192.)
    (Court of Criminal Appeals of Texas.
    June 26, 1914.
    On Motion for Rehearing, Oct. 14, 1914.)
    1. Criminal Law (§ 717) — Trial — Argument of Counsel.
    Where, after a difficulty between accused and deceased bad terminated and deceased was fleeing, accused pursued and felled him with an ax, and a third person carried deceased to a house to give him aid and ordered accused away, after which, while deceased was being-carried to his home, accused approached and without provocation again struck deceased with an ax, killing him, a statement by the county attorney in argument, that if .deceased and accused engaged in mutual combat and the combat was abandoned by deceased it would be in law the same as if deceased had never engaged in the difficulty with accused at all, was not error.
    TEd. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1682-1687; Dec. Dig. ,§ 717.]
    2. Criminal Law (§ 730) — County Attorney-Misconduct.
    At the end of a hypothetical question the county attorney stated that as far as the state was concerned it did not desire to do accused anything but justice. Accused objected to the statement as gratuitous, whereupon the county attorney said: “I will withdraw it then. We want to give Mm all the hell we can.” The court at once instructed the jury not to consider the statement, and did so again in his instructions, and the attorney apologized to the court and jury for having used the expressions. Held, that the error was cured.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1693; Dec. Dig. § 730.]
    3. Homicide (§ 81) — Murder—Manslaughter — Temporary Insanity — Intoxication.
    Temporary insanity produced by the use of intoxicating liquors will not reduce an offense from murder to manslaughter.
    [Ed. Note. — For other cases, see Homicide', Cent. Dig. § 107; Dec. Dig. § 81.)
    4. Homicide (§ 309) — Manslaughter — Intoxication— INSTRUCTIONS.
    A request to charge that, if accused’s mind was so intoxicated from the recent immoderate use of intoxicating liquors that he was incapable of cool and collected consideration, that fact should be Considered in passing on the issue of manslaughter, was erroneous, and properly refused.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 649, 650, 652-655; Dee. Dig. § 309.)
    5. Criminal Law (§ 916) — Triad-Time to Prepare.
    Where appointed counsel was given all the time required by statute to prepare to defend accused, and made no request for further time when the case was called for trial, or during the trial, it was too late, after verdict, to contend' that- counsel should have been given more time to prepare the case, in the absence of some showing that after the trial counsel had learned of testimony which would have been beneficial, and attached the affidavits of the witnesses, stating the facts to which they would testify.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ '2159, 2160; Dec. Dig. § 916..]
    6. Homicide (§ 28)— Punishment — Mitigation — Intoxication.
    Since the degrees of murder have been abolished, the fact that accused' was temporarily insane from the recent use of intoxicating liquors at the time he killed deceased is available only in mitigation of punishment.
    [Ed. Note. — For other cases, see. Homicide, Cent. Dig. §§ 44, 45, 46., 133; Dec. Dig. § 28.)
    On Rehearing.
    7. Criminal Law (§ 1206) — Punishment — Death Penalty — Indeterminate Sentence Law.
    The indeterminate sentence law (Acts 33d Leg. 1st Called Sess. c. 5), amending Ac.ts 33d Leg. c. 132, 'did not operate to impliedly repeal those statutes, authorizing the assessment of the death penalty for specified offenses.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3271-3277, 3279, 3280; Dec. Dig. § 1206.]
    Appeal from District Court, Jefferson County; W. H. Davidson, Judge.
    Sam Harris was convicted of murder, and he appeals.
    Affirmed.
    V. A. Collins, of Beaumont, 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

       For o tiler .cases see same topic and section NUM.BER in Dec. Dig, & Am. Dig. Key-No. Series & Rep’r Indexes.

   HARPER, J.

Appellant was found guilty of murder, and his punishment assessed at death, from which conviction he prosecutes this appeal.-

In the first bill of exceptions it is shown that counsel for the state in his argument stated to the jury that if the deceased and defendant engaged in mutual combat, and the combat was abandoned by deceased, it would be in law the same as if deceased had never engaged in the difficulty at all: Under the facts in this case we do not think this was a very improper statement. The evidence shows that when attention was first called to the parties, they were down on the ground fighting; that deceased got up and ran, when appellant took after him and struck him on the head with a small ax, felling him to the ground. Alfred Barnes interfered, and took the deceased into a house to wash the blood off of him; appellant endeavoring to force his way into the house. Barnes ordered him away, and undertook to carry deceased to his home, appellant walking along behind, when without other provocation he again struck deceased with the ax, killing him. Certainly, as qualified by the court, the bill presents no error.

Appellant introduced Dr. Will T. Williams as an expert witness on the issue of insanity. He asked a number of hypothetical questions, to which the witness gave answers, and then the county attorney examined him hypothetically, stating the premises-as he considered the evidence, and at the end of one of the questions stating: “Now, Doctor, that’s the best I can state it, and as far as I am concerned, and as far as the state of Texas is concerned, we are not after doing this fellow anything but justice.” Appellant objected to this statement as entirely gratuitous. The county attorney stated: “I will withdraw it then. We want to give him all the hell we can.” The court at once instructed the jury not to consider such statement, and again in his written charge so-instructed them. The county attorney apologized to the court and jury for having used the expressions. Under such circumstances, as there was nothing in the expressions used, tending to show the guilt of appellant, no error is presented. The county attorney at first was trying to be magnanimous by in-> forming the doctor that neither he nor the-•state wanted any injustice done appellant,, and, when this was objected to, he, as men often do, in a moment of petulancy, made the other remark. As he apologized to the court and jury for having done so, and the jury was twice instructed that it was improper and should not be considered -by them, the hurt, if any, was certainly removed.

Temporary -insanity produced by the-use of intoxicating liquors will not reduce an-offense from murder to manslaughter, and the court did not err in refusing the special charge requesting him to'so instruct the jury. By the terms of article 41 of the Penal Code, it was provided, when murder was divided into two degrees, that .temporary insanity so produced might reduce the offense from murder In the first to murder in the second degree. In all other instances the evidence was admissible only in mitigation of the punishment, but not to reduce the grade of the offense. Evers v. State, 31 Tex. Cr. R. 319, 20 S. W. 744, 18 L. R. A. 421, 37 Am. St. Rep. 811; Clore v. State, 26 Tex. App. 624, 10 S. W. 242; Hernandez v. State, 32 Tex. Cr. R. 271, 22 S. W. 972; Gaitan v. State, 11 Tex. App. 554; Houston v. State, 26 Tex. App. 657, 14 S. W. 352.

Again, in charge No. 2 appellant seeks to have the court, among other things, instruct the jury:

“And if you believe that defendant’s mind was so intoxicated from the recent immoderate use of intoxicating liquors that he was incapable of cool and collected consideration,” etc., that fact should be considered in passing on the issue of manslaughter.

This is not the law. This is a condition brought about by himself alone, and the court fairly and fully submitted the issue of manslaughter as made by the testimony.

These are all the bills in the record, but in the motion for new trial it is contended that the court should have given appointed counsel more time in which to prepare the case for trial. The court gave all the time the statute requires, and if counsel desired more time, he should have made that fact known at the time the case was called for trial, or if during the trial any state of facts arose which led him to believe that by a postponement of the case he could secure evidence beneficial to his client, he should have asked leave of the court to withdraw his announcement and postpone the case. It is too late after verdict to make such contention, unless some showing is made that since the trial he has learned of testimony which would have been beneficial, attaching the affidavits of the witnesses stating the facts to which they would testify. In this case no showing is made that any witness would swear to any fact; in fact, the motion for a new trial is not sworn to, nor is the affidavit of any witness attached to it, nor in the motion is the name of any witness given.

No objections were made to the charge of the court at the time it was submitted to counsel and before it was read to the jury. However, in the motion for new trial there is some complaint made as to that portion of the charge presenting the issue of temporary insanity from the recent use of intoxicating liquors. This portion is a fair presentation of the issue and not subject to the criticisms leveled at it. It authorized the jury, if they found appellant temporarily insane from the recent use of intoxicants, to take this in consideration in mitigation of the punishment assessed, in case they found appellant guilty. This is all the law authorizes now, since murder is only of one degree.

Counsel were appointed by the court to defend appellant, and they did so ably. They write that it is impossible for them to come to Austin at this time, and ask that the submission of the case be postponed until October. We have already postponed the case once at appellant’s request, and while we must commend them, in that they, without money and without price, are willing to come to Austin and present an argument on appeal, yet, as the court must adjourn this week, we do not feel that we would be justified in postponing submission of the case for three months. If, however, after counsel have read this opinion, they still think the record presents error for which the case should be reversed, they will doubtless file a motion for rehearing, and as the death penalty was assessed, and counsel could not come at this time, if they so desire we will hear them on the motion for rehearing.

The judgment is affirmed.

DAVIDSON, J.

This being a death penalty, I think it ought to have been postponed for argument till October term next. I express no opinion as to questions discussed, as I have not had time to investigate them satisfactorily.

On Motion for Rehearing.

HARPER, J.

Appellant’s counsel, on motion for rehearing, has raised the question that in Texas the punishment of death is no longer fixed as punishment for crime — that such laws were repealed by the indeterminate sentence law passed at the first called session of the Thirty-Third Legislature. This is the first time such question has been raised ; but, of course, if our laws no longer authorize the infliction of death as a punishment for crime, the question can be raised at any time, for no punishment not authorized by law can be inflicted. But does the indeterminate sentence law repeal those statutes authorizing the death penalty to be assessed for certain offenses? If so, it is by implication only, for that act contains no clause expressly repealing laws assessing the death penalty, and repeals by implication are not favored, and it is only when' there is an unavoidable inconsistency in the two acts that the later law will be held to repeal the earlier statutory provision. Sutherland on Stat. Gon. § 247.

It is contended by appellant that the first indeterminate sentence passed at the regular session of the Thirty-Third Legislature exempted from its provisions by specific words those cases in which the death penalty may be assessed, and the later act does not do so; that it was the intention of the Legislature to repeal those provisions of the Code assessing the death penalty for certain crimes. We do not think so. By referring to the first indeterminate sentence law (chapter 132, Acts 33d Leg.), it will be seen that by its terms and provisions it tools away from the jury the right to assess the punishment in all felonies, except in cases where the jury desired to inflict the death penalty, and required the court to assess the punishment at a fixed maximum :and minimum period of time of imprisonment in tiie penitentiary. By tile amendatory act {chapter 5, Acts 1st Called Session 33d Leg.) it restored to the jury the right and made it their duty to assess the punishment in all felonies, necessarily including those cases in which the death penalty might be assessed, and then provided that, if the punishment was assessed at a term of years in the penitentiary, the judge in passing sentence should pronounce an indeterminate sentence, assessing the maximum punishment at the term fixed by the jury, and a minimum term of the least punishment fixed by law for such an offense. In this latter law there is nothing repugnant or inconsistent with those laws affixing the death penalty for certain crimes, ¡but it is clearly manifest that the only purpose the Legislature had in view was to restore to the defendant the right to have the jury assess the punishment in all cases, that they might give consideration to any mitigating circumstances which the evidence might disclose, and then require the court to assess an indeterminate sentence using the term of imprisonment as fixed by the jury as the maximum term, that a person convicted of crime might be given the benefit of good conduct while confined in the penitentiary. The law neither expressly nor by implication repeals those provisions of the Code which authorize the jury to assess the death penalty for certain crimes when they in their judgment think that this punishment should be assessed. No court would be authorized to hold that those parts of the Code authorizing the infliction of the death penalty had been repealed, unless the Legislature by express statute had so declared, or the language used in a later act was so repugnant to the earlier provisions of the Code that one was necessarily driven to the conclusion from the language used that this was the intent and purpose of the Legislature.

All the other questions discussed were passed on in the original opinion, and counsel’s only other contention made'in his able oral argument in this court is that the evidence does not disclose such a state of facts that the death penalty should have been assessed. He does not contend that the evidence does not show an unlawful killing, but that the record raises the issue that appellant was temporarily insane from the recent use of intoxicating liquors. This issue was submitted to the jury fairly by the trial court, and they find against his contention. Appellant, it is true, testifies he was so drunk he had no recollection of the homicide. He says he took one drink of whisky early in the morning, and then later drank two glasses of •egg-nog, and remembers nothing more that took place that day. There is evidence that he may have drunk a quantity of wine also, ¡but no positive proof of that fact.

There is only one eyewitness to the killing, Alfred Barnes. He testifies that as he looked down the street he saw a negro and white man fighting; they went to the ground; he did not know which one was on top; that the white man shortly got up, and broke and run, when the negro took after him with an ax, and, when he overtook the wnite man, knocked him to the ground. . Barnes says he at once went to them, and recognized appellant as the negro and deceased as the white man; that deceased was on the ground, his head being bloody, and he then separated them, and carried the man in a house to wash the blood from off of him. While doing so, appellant came to the door and made threatening remarks. Barnes ordered him away, and then undertook to carry the white man home. Appellant again approached, and without a word struck the white man with the ax, knocking him down, and took after Barnes with the ax. Barnes fled, when appellant returned to where the white man lay on the ground, and again struck him with the ax, saying,. “You G-d d-n s-n of a b — h, I will kill you,” and did so.

Appellant did not have a mark or scratch of any kind on him — only some blood on his clothes that apparently came from deceased. This evidence certainly authorized the assessing of the death penalty under the law, for it shows a fixed purpose to kill, unless appellant was temporarily insane from the recent use of intoxicating liquors. There is evidence pro and con on this issue, and we would not feel authorized to disturb the finding of the jury on that issue.

The motion for rehearing is overruled.


author: HARPER, J. DAVIDSON, J.

text:
    Ex parte BROUSSARD.
    (No. 2759.)

    (Court of Criminal Appeals of Texas.
    Dec. 3, 1913.
    On Motion for Rehearing, April 1, 1914.
    Dissenting Opinion April 11, 1914.)
    Municipal Corporations (§§ 604, 626) — Ordinances — Keeping- Cattle — Regulation — Licenses—Equality—“Stock Pen.
    Beaumont City Ordinance, art. 991, provides that it shall be unlawful to establish or maintain any stock pens within 300 feet of any hotel or private residence in the city without a permit from the city council. Other provisions declare that the words “stock pen” shall include any lot wherein more than six head of cattle are kept. Held, that such ordinance was a proper exercise of the city’s police power, and was not unconstitutional because the council might act arbitrarily, since it would be presumed that it would not do so, and, if it did, the person aggrieved would have an adequate remedy by mandamus.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1335-1337, 1380; Dec. Dig. §§ 604, 626.]
    Davidson, J., dissenting.
    Appeal from District Court, Jefferson County; W. H. Davidson, Judge.
    Habeas corpus. On petition of J. J. Broussard to obtain his discharge from prosecution for violating an ordinance of the city of Beaumont prohibiting the maintenance of stock pens in a city within 300 feet of a ñotel or private residence without a license. From a judgment dismissing the writ and remanding relator to custody, he appeals.
    Affirmed.
    Dougherty & Gordon, of Beaumont, and W. IF. Ramsey and C. L. Black, both of Austin, for appellant. O. E. Lane, Asst. Atty. Gen., for the State.

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

       writ of error granted by united States Supreme Court.

   HARPER, J.

The city council of the city of Beaumont passed the following ordinance:

“Art. 991. It shall be unlawful hereafter for any person, corporation or association of persons to establish or maintain any slaughter house, hone boiler or soap making establishment, in the city of Beaumont or any brick yards, livery stable, horse lots and stock pens, within a distance of 300 feet of any hotel or private residence in the city of Beaumont, without first obtaining a permit from the city council.”

Other provisions of the ordinance provided that the term “stock pen,” as used in the ordinance, should include any lot wherein more than six head of cattle were kept, and the penalty fixed thereto was by fine not less than $25, nor more than $100.

Appellant was arrested, charged with a violation of this ordinance, in that he maintained a stock pen containing more than six head of cows on lots 3 to 6, in block 2, in Blanchette second addition to the city of Beaumont, without having obtained a license or permit from the city council.

There is no claim that the complaint is not a valid one, if the ordinance is valid. When appellant was arrested on the complaint, he sued out a writ of habeas corpus before Hon. W. H. Davidson, judge of the Fifty-Eighth district court, who granted the writ and set the cause down for hearing. When heard, the court held the ordinance valid, and remanded the relator to custody, from -which judgment and order he prosecutes this appeal, assigning the following errors: That the court erred in holding the ordinance valid for these reasons: (1) That the ordinance is not fair, impartial, and uniform; (2) that the ordinance delegates to the city council despotic and arbitrary power; (3) that said ordinance is in contravention of section 28 of article 1 of the Constitution of this state; (4) that said ordinance is in contravention of section 19 of article 1 of the Constitution of this state; (5) that said ordinance contravenes section 1 of the fourteenth amendment to the Constitution of the United States.

Relator's counsel have filed a very able brief, in which they take up and discuss all of these assignments. That the ordinance is not violative of the fourteenth amendment to the Constitution of the United States, nor any other provision thereof, has been specifically held by the United States Supreme Court in the case of Fischer v. St. Louis, 194 U. S. 361, 24 Sup. Ct. 673, 48 L. Ed. 1018. In that ease they passed an ordinance which read as follows:

“No dairy or cow stable shall hereafter be erected, built or established within the limits of this city without first having obtained permission so to do from the municipal assembly.”

This ordinance was assailed upon every ground upon which relator assails this ordinance. The Supreme Court upheld the ordinance, saying:

“Defendant’s main contention, however, is that, by vesting in the municipal assembly the power to permit the erection of dairy and cow stables to certain persons, a discrimination is thus declared in favor of such person and against all other persons, and the equal protection of the laws denied to all the disfavored class. The power of the Legislature to- authorize its municipalities to regulate and suppress all such places or occupations as, in its judgment, are likely to be injurious to the health-of its inhabitants or to disturb people living in the immediate neighborhood by loud noises or offensive odors is so clearly within the police power as to be no longer open to question. The keeping of swine and cattle within the city or designated limits of the city has been declared, in a number of cases to be within the police power. The keeping of cow stables and dairies is not only likely to be offensive to neighbors, but it is too often made an excuse for the supply of imp.ure milk from cows which are fed upon unhealthful food, such as the refuse from distilleries, etc. Re Linehan, 72 Cal. 114, 13 Pac. 170; Quincy v. Kennard, 151 Mass. 563, 24 N. E. 860; Love v. Recorder’s Court Judge, 128 Mich. 545, 87 N. W. 785, 55 L. R. A. 618.
“We'do not regard the fact that permission to keep cattle may be granted by the municipal assembly as impairing, in any degree, the validity of the ordinance, or as denying to the disfavored dairy keepers the equal protection of the laws. Such discrimination might well be made where one person desired to keep 2 cows and another 50; where one desired to establish a stable in the heart of the city and another in the suburbs; or, where one was known to keep his stable in a filthy condition and another had established a reputation for good order and cleanliness. Such distinctions are constantly made the basis for licensing one person to sell intoxicating liquors and denying it to others. The. question in each case is whether the establishing of a dairy and cow stable is likely, in the hands of the applicant, to be a nuisance or not to the neighborhood, and to imperil or conduce to the health of its customers. As the dispensing power must be vested in some one, it is not easy to see why it may not properly be delegated to the municipal assembly which enacted the ordinance. Of course, cases may be imagined where the power to issue permits may be abused and the permission accorded to social or political favorites and denied to others, who, for reasons totally disconnected with the merits of the case, are distasteful to the licensing power.”

This so clearly expresses the rule of law applicable to this case, we adopt the language there used.

That the council may act arbitrarily under the authority there granted does not render the ordinance void. The presumption of law is that the council will act within the spirit and intent of the law; that is, in such manner as they deem necessary for the public health and welfare of the city. If they do act arbitrarily in the premises, this would not, in and of itself, render the ordinance void, but such action would be-revised and controlled by the proper tribunal. As said by some of the courts, the practice of nearly a century sliows that there is little to fear from an abuse of this power. In the government of affairs of a municipality many powers must necessarily be confided to the jurisdiction of its officers, and it can be productive only of mischief in the treatment of such questions to substitute the discretion of strangers in place of that of the officers best acquainted with the circumstances, conditions, and necessities of the case. That the law furnishes ampie remedies for the abuse of such discretion, when the action taken is but an arbitrary exercise of power, can hardly be questioned. It is a discretion confided that must be exercised in.the interest of the public welfare, in the interest of the public health, and the public peace, and if the facts should show that in the refusal of the permit or license no such incentives or purposes were behind the action of the council, then, in application for a writ of mandamus made to the proper tribunal, the council would be compelled to issue the license or permit. The facts as agreed to in this case, while not full and complete, might indicate, as contended by relator, that perhaps the council acted rather arbitrarily in this instance, but from such action we could give no relief; that would be the office of the civil court in an action for a writ of mandamus tp compel the issuance of the license to the relator. However, upon a full development of all the facts, it may be that the council acted properly, and the refusal of the license was necessary for the preservation of the health and welfare of the city, i It is not disclosed by the application nor the evidence how many cattle the relator desired to keep within the city limits. If he desired to keep on the lots mentioned a herd of cattle for barter and sale, and sucb lots were near to and adjacent to the resident portions of the city, the city council would and did act properly in refusing him a permit to keep cattle within such territory. At least we hold that the ordinance, in requiring that a person desiring to keep more than six head of cattle within one inclosure within the limits of the city to obtain a 'permit to do so from the city council, is not void, and violative of no provision of the Constitution of this state or the United States; for if the council should seek to exercise this power in an arbitrary and unreasonable manner, its power can and will be controlled by the courts, and by a writ of mandamus any injustice can and will be prevented, should the officers so far forget their official oath and duties as not to administer it in a fair, impartial way as applicable to all citizens. As to the facts necessary, or the rules governing the writ of mandamus, it is not necessary nor proper for us here to discuss, as it is a civil, and not a criminal, proceeding. However, we will state, the general rule seems to be as stated in Cyc. vol. 23, p. 137:

“Where a court or board of officers invested with a discretion as to the grant or refusal of a license, and where in the exercise of such discretion it has examined and rejected a' particular application for license, mandamus will not lie to review the case and compel the grant of a license, unless it shall appear that such discretion has been abused or exercised in an arbitrary and unlawful manner. But if a license has been refused to a properly qualified person, without any reason whatever, or without any reason which is valid and sufficient in law, but in an arbitrary and capricious exercise of the power vested in the licensing authorities, redress may be had by mandamus. In re Sparrow (Pa.) 20 Atl. 692; [Prospect Brewing Co.’s Petition] 127 Pa. 523 |T7 Atl. 1090].; People v. New York, 18 N. Y. Supp. 621 ; State v. Baker, 32 Mo. App. 98; State v. New Orleans [113 Ha. 371] 36 South. 999 [67 L. R. A. 70, 2 Ann. Cas. 92]; George v. Winchester [118 Ky. 429] 80 S. W. 1158; Zanone v. Mound City, 103 Ill. 552; State v. Jefferson County Comm., 20 Ela. 425.”

In our own state the Supreme Court holds the rule as above stated to be correct. In the case of Sansom v. Mercer, 68 Tex. 488, 5 S. W. 62, 2 Am. St. Rep. 505, Judge Gaines, in speaking for the court, holds:

“When it is apparent that the refusal of an officer to perform an official act, which prima facie involves judgment and discretion in regard to the existence or nonexistence of the conditions which would require its performance, is arbitrary, and not because of any doubt or conviction regarding his duty, and there is no controversy as to the existence of the facts which would make his action ministerial, purely, mandamus will lie.”

So in this case, if the action of the city council in refusing to grant relator a permit was but the arbitrary exercise of a power-conferred on them, mandamus will lie to compel the issuance of a permit to him. Regulations for the care and keeping of stock in cities is necessary for the health and welfare of the citizens, and when they are to be kept in quantities in excess of six head, the power to issue permits to do so must be placed somewhere, and we see no reason why the city council is not a proper tribunal to invest the exercise of this power. They are the lawmaking body of the city, and would have the authority to keep too many pens of this character located near each other, would have the right to prohibit the keeping of large herds in the city limits altogether, and have the authority to place all reasonable rules and regulations around the keeping of stock in the city as may be necessary for the public health. In placing this discretionary power, as to the issuance of permits for keeping stock in pens in quantities of six head and more, in the city council, no provision of our Constitution nor the federal Constitution is violated, and if, as contended by relator, he has been discriminated against, and the action of the council was but an arbitrary exercise of power, he has his remedy, and can apply for a mandamus to compel its issuance. That the council had acted improperly in this instance, if they did do so, would not render the ordinance unconstitutional.

On Motion for Rehearing.

. Relator’s counsel have filed a very able and exhaustive brief on motion for rehearing, exhibiting much research and learning. We have studied the authorities therein cited, and considered the able reasoning of relator’s counsel, but it has not changed our opinion as to the constitutionality of the ordinance in question. That portion of the ordinance quoted in the original opinion, which, it is claimed, renders the ordinance invalid, is the clause which provides that, before a person can establish or maintain a slaughterhouse, bone-boiler establishment, etc., or stock pens containing more than six head of cattle,within 300 feet of a private residence, “a permit must be obtained from the city council;” it being contended this clause would authorize the city council to act arbitrarily, to grant a permit to one.citizen and refuse another the privilege, and this renders the ordinance unconstitutional. Relator admits that the United States Supreme Court sustained the validity of just such an ordinance in the case of Fischer v. St. Louis, 194 U. S. 364, 24 Sup. Ct. 673, 48 L. Ed. 1018, but he insists that in that case it wa^ not shown that the city council had under the provisions of the law, acted arbitrarily, and then adds:

“We believe we can show that the decisions of the Supreme Court of the United States, when carefully considered with reference to the record presented in this case, are not against our position, but, when so considered, clearly support us. With due respect to the United States Supreme Court, it must be said and admitted that probably no court in this country has rendered more conflicting decisions than it has. There is hardly a question that has come before it for decision upon which its decisions are not apparently in almost hopeless conflict. It is therefore a matter of great importance, in determining the weight to be attached to its decisions, to examine same carefully and consider the same with reference to the very record and point presented.”

And then relator cites the case of Tick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. 1064, 30 L. Ed. 220, and upon wk.iich he relies to sustain his contention that the ordinance is vio-lative of the provisions of the fourteenth amendment to the Constitution. We would hardly feel authorized to thus assume to criticize the Supreme Court of the United States, and we do not think the two cases above cited authorize such conclusion, nor that the cases of Tick Wo v. Hopkins and Fischer v. St. Louis, supra, are in hopeless conflict, but they both announce correct rules of law, and this is apparent when you take into consideration the questions and issues being dealt with in those cases.

In the case of Tick Wo v. Hopkins the city of San 'Francisco had prohibited any person in the city from pursuing the laundry business in a frame house in that city without first haying obtained permission of the city authorities. It was shown in that case that, under such ordinance, permits had been granted to all persons other than Chinese, and that permits had been refused to all Chinamen, more than 200 in number, who had theretofore engaged in . that business. The court holds that laundrying is a legitimate business, and the pursuit thereof, is not injurious to the public health or welfare of the city, and it was not a class of business which any man could be prohibited from pursuing, and, not being hurtful nor harmful to the public welfare, the council could not prohibit it from being pursued, nor prohibit any man from pursuing that business. And as the ordinance, by its operation, construction, and application, was so administered as to show that the intent and purpose of it was to prohibit a certain race of people from pursuing a legitimate trade or calling, which in and of itself could not be hurtful, it was illegal. Boiled to its last analysis, this was all that was held in that case. But in the case of Fischer v. St. Louis the court and council were dealing with an entirely different business — one that in its nature was harmful, and which the city council would have the right to prohibit — the keeping of large herds of cattle within the corporation limits and near the thickly settled portions of the town. As said by the court:

“We do not regard the fact that permission to keep cattle may be granted by the municipal assembly as impairing, in any degree, the validity of the ordinance, or as denying to the disfavored dairy keepers the equal protection of the laws. Such discrimination might well be made where one person ‘desired to keep 2 cows and another 50; where one desired to establish a stable in the heart of the city and another in the suburbs; or where one twas known to keep his stable in a filthy condition, and another had established a reputation for good order and cleanliness. Such distinctions are constantly made the basis for licensing one person to sell intoxicating liquors and denying it to others. The question in each case is whether the establishing of a dairy and cow stable is likely, in the hands of the applicant, to be a nuisance or not to the neighborhood, and to imperil or conduce to the health of its customers. As the dispensing power must be vested in some one, it is not easy to see why it may not properly be delegated to the municipal assembly which enacted the ordinance.”

As is seen, the court was dealing in this case with a business, in the interest of public health, that might be altogether prohibited, and of necessity different rules of law apply in one instance and in the other. It is a matter of common knowledge that the herding or keeping of large herds of cattle in the narrow confines of a lot within the limits of a city, and near private residences or the business portions of the town, produces offensive odors and conditions that breed disease and epidemics, endangering human life. The droppings not only ixroduce offensive odors, but attract numerous flies and other insects, and what is termed the “stable fly” is now recognized by the medical world as.the carrier of the deadly diseases that in* feet at times our southern clime. Beaumont, as we know, is situated in the heart of the rice belt, where the land is low and, in the main, of a flat surface, near the Sabine river, with irrigation ditches 'abounding in that section, and it must protect itself and its citizens by proper sanitary regulations from what is termed malarial diseases. As is said in all the standard law books, the reason why the power to enact sanitary and health regulations is always conferred upon cities and municipalities is that they best know their conditions and needs and what regulations will best subserve the health of its citizens, and when an ordinance is passed with this end in view, it must be clearly vio-lative of some provisions of the Constitution before the courts will nullify it. While no state or municipality can arbitrarily deprive a citizen of his property, or the legitimate or proper use thereof, neither has the citizen the right to so use his property as to be hurtful and harmful to his neighbors, or the public. When a civil government was formed for our mutual protection and benefit, each citizen of necessity surrendered some rights and privileges, and could no longer be a law unto himself. Mr. Dillon, in his work on Municipal Corporations, in discussing tne class of ordinances involved in this case, says:

"Ordinances prohibiting certain acts without the consent or permit of the common council or the mayor or other executive officer have in some cases been held to be unreasonable and void, because they submit the right of individuals to the unrestrained discretion of the council or official. It has been said of ordinances of this nature that they remove the rights of the individual from the domain of law and subject them to the exercise of arbitrary discretion on the part of the council or the officer upon whom the dispensing power is conferred; that it is unreasonable to reserve the right to grant or withhold the privilege as it may suit the pleasure of the council or officer; and that, to be valid, an ordinance of this nature must lay down a uniform rule of action governing the exercise of the dispensing power.
“In these cases the remarks of the court appear to have been directed to the denial of any right or authority on the part of the city to subject the individual to an arbitrary discretion on the part of the council or of the officer upon whom the dispensing power is conferred. It is, however, to be observed that in the great majority, if not in all, of the cases cited the ordinance was prohibitory in its nature, and, in the view of the courts, the acts sought to be prohibited were not of themselves harmful or of such a nature as to justify prohibition. But whilst the principles so laid down are supported by a respectable body of authority, it is believed that they are contrary to the weight of the decisions. Many cases are to be found sustaining ordinances prohibiting acts or even the following of trades or occupations without procuring permits which may be issued at the discretion of the council, mayor, or some other city officer or department, and the fact that the dispensing power was apparently conferred without restraint or qualification has been regarded as arising merely from the difficulty of defining in advance upon what conditions the permit shall be given or the dispensing power exercised. It has also been said that it is not to be assumed that the council or officer, in exercising the dispensing power, will act arbitrarily or otherwise than in the exercise of a sound discretion.
“It is, however, to be observed that in sustaining these ordinances in some instances the courts declared that it was within the power of the Legislature, or of the city council by virtue of delegated authority, to prohibit the act absolutely, and that the right to absolutely prohibit necessarily -includes the authority to determine under what circumstances the act may be permitted; as the greater power contains the loss. But in other cases this distinction does not seem to have been adverted to., and it appears to have been held that, the constitutional rights of the individual are not affected in any way merely because the discretion to grant a permit to do an act or to exercise a trade or calling has been vested in a municipal board or officer. In these cases it appears to be assumed that if the trade or calling is properly of a nature which may be regulated or controlled by virtue of the police power, such regulation or control may be exercised by a prohibition, unless a permit be obtained.” Section 598 (5th Ed.).

Under the first paragraph of the above quotation will be found nearly all the cases cited by relator in his brief, and on pages 937, 938, 939, and 940 of volume 2, same edition, will be found a long list of authorities sustaining the view taken by that eminent lawwriter, Mr. Dillon, and conclusively showing that the weight of authority in this country is against relator’s contention in this case, and where the city council is dealing with a subject which, in the interest of public health, it may, if it is deemed proper, absolutely prohibit, unless permission is granted by the council, and reserve to itself the right to say whether or not a permit shall be granted. And why should this not be so. The council is the Legislature or lawmaking body of the city. At the granting of each license it may throw about such restrictions and regulations as the necessities of the case demand, and no one would contend that the same regulations would apply to the keeping of 10 head of cattle as would be necessary if 100 were to be kept, or that the city ought in any instance allow the keeping of 100 head of cattle within the corporation within 300 feet of a residence or adjacent to the business portion of the city. In this instance the power is not delegated by the council to any other board or body of men, but it provides that the application shall be made to the council itself — the lawmaking body. Where could the discretion necessary to be exercised in instances of the character described in this ordinance more properly be lodged than in the council, which of necessity must pass the law, and that they reserve to themselves in granting permission to place all restrictions they deem necessary for the public welfare; and in those instances where the council deems that the keeping of more than six head of cattle would be hurtful and harmful to the health of its citizenship, or that the person applying is not such a person as would comply with the necessary regulations, or where it was desired to keep an unlimited number of cattle, to refuse permission altogether. As said in the original opinion, the facts are not sufficiently developed for us to determine whether or not the council in this instance has or has not acted arbitrarily in refusing relator permission to keep more than six head of cattle. There is no allegation as to the number he desired to keep within the city limits; no aRegation that he would comply with all reasonable rules and regulations that might be prescribed by the council, or that he had offered to do so. He has not been tried for the offense, but, when arrested for violating the provisions of the ordinance, he sued out a writ of habeas corpus, alleging that the ordinance on its face was unconstitutional. We do not deem it so, and he does not bring himself within the rules of law that would authorize us to grant him any relief, and the motion for rehearing is overruled.

DAVIDSON, J.

(dissenting). I have been unable to agree with the conclusion of the majority as expressed in Judge HARPER’S opinion. I believe the legal propositions relied upon and presentid by relator correctly present the law of the case. These propositions have been ably and forcefully stated by his counsel in their brief and written argument, and so clearly reasoned and supported by authority they should have been sustained. So believing, I reguested his counsel, Messrs. Dougherty & Gordon and Messrs. W. F. Ramsey and C. D. Black, to formulate and state the propositions of law applicable to the j ease to form the basis of my dissenting opinion. They have done so, and so clearly and ably I have thought it but just and appropriate to adopt their statement of the law as my dissenting opinion, which I now do, which is as follows:

"1. The ordinance under review in this case, in effect, prohibits any person from keeping-more than six head of stock within 300 feet of any hotel or private residence in the city of Beaumont without first obtaining a permit from the city council. The ordinance contains no conditions regulating the issuance of permits by the city council. It prescribes no conditions, upon the satisfaction of which the applicant for a permit would become entitled to same and entitled to enforce his right to same in the courts by proper remedy. The whole matter, under the terms of the ordinance, is left within the unconditioned and consequently uncontrollable discretion of the city council. Under the terms of this ordinance, the city council may grant a permit to one person and refuse it to another under the same circumstances, and there would be, if the ordinance is valid, no legal remedy for the person to whom a permit is refused. I think the. overwhelming weight of authority condemns such an ordinance as void, upon the ground that it subjects the right to the lawful ownership and use of the property to the unconditioned and arbitrary discretion of the city officers. The following are a few of the cases condemning as void ordinances similar to the one here under review: Tick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. 1064, 30 L. Ed. 220 (prohibiting the establishment and maintenance of laundries except in brick and stone buildings within the city of San Francisco without first obtaining a permit from the board of supervisors) : Barthet v. City of New Orleans (C. C.) 24 Fed. 563 (ordinance void prohibiting the maintenance of a slaughterhouse within certain limits of the city, unless permission be first granted by the city council); State v. Mahner, 43 La. Ann. 498, 9 South. 481 (ordinance void forbidding the maintenance of dairies within certain limits of the city without a permit from the city. council); State v. Du Barry, 44 La. Ann. 1117, 11 South. 718 (ordinance void prohibiting the keeping of a private market within the city without permission of the city council) ; Montgomery v. West, 149 Ala. 311, 42 South. 1000, 9 L. R. A. (N. S.) 659, 123 Am. St. Rep. 33, 13 Ann. Cas. 651, and note (ordinance void prohibiting the operating of steam engine, foundry, cotton gin, bakery, or establishment for boiling soap in the city without first obtaining the consent of the city council); May v. People, 1 Colo. App. 157, 27 Pac. 1010 (an ordinance void which prohibited the storing of hides or pelts within the city limits without permission of the council); Mayor v. Radecke, 49 Md. 230, 33 Am. Rep. 239; Mayor & City Council of Hagerstown v. Baltimore, 107 Md. 178, 68 Atl. 490. 126 Am. St. Rep. 3S2 (an ordinance void prohibiting the keeping of live stock within 250 feet of two private residences within the limits of the town without a permit from the mayor and city council — almost literally the same as the ordinance here involved); Cicero Lumber Co. v. Town of Cicero, 176 Ill. 9. 51 N. E. 758, 42 L. R. A. 696, 68 Am. St. Rep. 155 (ordinance void which prohibited the driving of omnibuses or heavy vehicles over a certain boulevard without a permit therefor from the board of trustees of the town); Noel v. People, 187 Ill. 587, 58 N. E. 616, 52 L. R. A. 287, 79 Am. St. Rep. 238 (act void which delegates power to a state board of health to issue permits, and does not prescribe restrictions or conditions); City of Richmond v. Dudley, 129 Ind. 112. 28 N. E. 312, 13 L. R. A. 587, 28 Am. St. Rep. 180 (ordinance void which prohibits the storing of oils or inflammable materials in the city except by persons or at places permitted by the city council); City of Elkhart v. Murray, 165 Ind. 304, 75 N. E. 593, 1 L. R. A. (N. S.) 940, 112 Am. St. Rep. 228, 6 Ann. Cas. 748 (adhering to the rule stated in the last case); Bear v. Cedar Rapids, 147 Iowa, 341, 126 N. W. 324, 27 L. R. A. (N. S.) 1150 (ordinance void providing that no person should be allowed to sell milk within the city without first obtaining a permit from the board of health, and not providing any conditions upon which permits shall be issued or withheld); Walsh v. City of Denver, 11 Colo. App. 523, 63 Pac. 458 (ordinance requiring butchers to obtain a permit from the health committee of the city before carrying on their business, and not containing any conditions or regulations governing issuance, held void); Commonwealth v. Maletsky, 203 Mass. 241, 89 N. E. 248, 24 L. R. A. (N. S.) 1168 (ordinance void which prohibits any person to. occupy or use a building for the purpose of picking, storing, or assorting rags without a written permit from the chief of the fire department, and no conditions prescribed); City of Richmond v. Model Steam Laundry, 111 Va. 758, 69 S. E. 932 (ordinance void which prohibits a certain act to be done except by a permit from the city council); Boyd v. Council, 117 Ky. 199, 77 S. W. 669, 111 Am. St. Rep. 240 (ordinance void which prohibits any person from erecting any structure within the city without tfie permission of the common council, no conditions being prescribed); Mayor v. McCann, 105 Tenn. 159, 58 S. W. 114, 50 L. R. A. 476 (ordinance void which makes it unlawful for the proprietor of any saloon where intoxicating liquors are sold to enter his saloon on Sunday for any purpose without obtaining a written permit from the mayor); Goodale v. Sowell, 62 S. C. 516, 40 S. E. 970 (laying down the same principle) ; Village v. Van Camp, 136 Wis. 526,. 117 N. W. 1012, 128 Am. St. Rep. 1100 (ordinance .void which provided that all saloons of the village should close at 11 o’clock and remain closed until 5 o’clock, unless by special permit of the president of the village); State v. Crepeau, 29 R. I. 340, 71 Atl. 449 (ordinance void which undertakes to control the construction of buildings without a permit first obtained, and does not define conditions under which permits may be obtained); City v. Kirby, 6 S. D. 62, 60 N. W. 156, 25 L. R. A. 621 (construing a similar ordinance and 'holding' same void); State v. Kuritz, 47 La. Ann. 106, 16 South. 651 (ordinance void which prohibits the stabling of more than two horses within the city without a permit from the city council); Los Angeles v. Hollywood Cemetery Association, 124 Cal. 344, 57 Pac. 155, 71 Am. St. Rep. 75 (annulling an ordinance prohibiting the enlarging of cemeteries without the council’s permission, no conditions being prescribed); Ex parte Theisen, 30 Fla. 529, 11 South. 903, 32 Am. St. Rep. 36 (annulling an ordinance forbidding liquor sales within certain districts of the city without the council’s consent); State v. Tenant, 110 N. C. 609, 14 S. E. 387, 15 L. R. A. 423, 28 Am. St. Rep. 715 (ordinance void which prohibits the erection of buildings without the permission of the aldermen, no uniform rules being prescribed to obtain permits); State v. Dering, 84 Wis. 585, 54 N. W. 1105, 19 L. R. A. 858, 36 Am. St. Rep. 948 (annulling an ordinance prohibiting parading in the city without the may- or’s permission); Bostock v. Sams, 95 Md. 400, 52 Atl. 665, 59 L. R. A. 282, 93 Am. St. Rep. 394 (condemning ordinance similar in effect).
“Some of the foregoing cases, as will be noted, involve ordinances almost identical with the one here construed. All of them involve the application of a similar principle. It is not necessary to quote from them in detail. The. following quotation, however, in the case of Cicero Lumber Co. v. Town of Cicero, 176 Ill. 9, 51 N. E. 764, 42 L. R. A. 696, 68 Am. St. Rep. 155, evidences a course of reasoning which will be found in all the above cases and which states clearly the grounds upon which these ordinances are held void: ‘It prohibits that which is in itself and as a general thing perfectly lawful, and leaves the power of permitting or forbidding the use of traflic teams upon the boulevard to an unregulated official discretion, when the whole matter should be regulated by permanent legal provisions, operating generally and impartially. The ordinance is not general -in its operation. It does not affect. all citizens alike to use traflic vehicles. It is only persons driving traflic vehicles upon the boulevards without the permission of the board of trustees who are subjected to the penalties of this ordinance. The ordinance in no way regulates or controls the discretion vested thereby in the board. It prescribes no conditions upon which the special permission of the board is to be granted. Thus the board is clothed with the right to grant the privilege to some and to deny it to others. Ordinances which thus invest the city council or board of trustees with a discretion -which is purely arbitrary and which may be exercised in the interest of a favored few are unreasonable and void.’
“The following quotation from State y: Mah-ner, 43 La. Ann. 496, 9 South. 480, where the court had under review an ordinance almost identical with the one here involved, is clearly in point: ‘The ordinance is not general in its operation. It does not affect all citizens alike who follow the same occupation which it attempts to regulate. It is only those persons who keep more than two cows in the prohibited limits, without the permission of the city council, who are subjected to the penalties in this ordinance. The discretion vested by the ordinance in the city council is in no way regulated or controlled. There are no conditions,prescribed upon which the permit may be granted. It is within the,power of the city council to grant the privilege to some, to deny it to others. The discretion vested in the. council is purely arbitrary. It may be exercised in the interest of a favored few. It may. be controlled by partisan considerations and race prejudices, or by personal animosities. It lays down no rules by which its impartial execution can be secured or partiality and oppression prevented.’
“The same reasoning is applicable to the ordinance, with the violation of which the relator is charged. It does not prohibit all persons within the city of Beaumont from keeping-more than six head of stock within 300 feet of a private residence. It prohibits only those to do this who are unable to secure a permit from the city council, and does not prescribe any conditions regulating the issuance of permits and upon compliance with which the citizen could enforce in the courts the issuance of same. In this connection it should be remembered that it is not even pretended that, aside from this ordinance, the keeping of more than sir head of cattle in a city is an unlawful act, or is in itself a nuisance. In other words, this ordinance undertakes to prohibit or regulate an otherwise lawful use of property. This being true, it should have prescribed conditions and regulations governing the issuance of permits, so that, upon a compliance with same, a citizen desiring a permit could enforce his right to same by appropriate remedy in each case.
“2. I am also unable to agree with the position of the majority, stated in the original opinion, that the proper remedy, if any, for the relator is that of mandamus. If this ordinance is valid, it confers upon the city council a pure and uncontrolled discretion with reference to the issuance of permits. This being true, no court would issue a writ of mandamus to compel the issuance of same, for the rule is elementary that, before the writ of mandamus will issue, it must appear that the duty is ministerial. The cases cited in the majority opinion, holding mandamus to be a proper remedy to compel the issuance of a license, ‘upon examination, will be found to be cases where the ordinance or statute under which the license was to be issued prescribed regulations and conditions governing the issuance of same and upon compliance with which the applicant became absolutely entitled to the license. , This ordinance prescribes no conditions and no regulations. It would therefore be an impossibility for the applicant, in his petition for mandamus, to make it appear that he had satisfied all conditions; for the reason that none are prescribed. The whole matter is left to the unconditioned, and, as stated in many of the authorities, consequently uncontrollable., discretion of the city council. It is upon this very ground that these ordinances have been generally held void by the courts. An examination of the authorities hereinbefore cited will show that many of the courts have regarded this fact as of controlling importance in determining that the ordinance construed was invalid. See, also, the following: Tick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. 1064, 30 L. Ed. 220; Cyc. vol. 23, p. 138; Cyc. vol. 25, p. 623; Ry. Co. v. Railroad Commission, 95 Tex. 671, 69 S. W. 62; Sherman v. Smith, 12 Tex. Civ. App. 580, 35 S. W. 294; Brown v. Houston (Civ. App.) 48 S. W. 760; Lewright v. Ball, 94 Tex. 556, 63 S. W. 623; Teat v. McGaughey, 85 Tex. 478, 22 S. W. 302.
“3. I am also unable to agree with the conclusion of the majority that the decisions of the Supreme Court of the United States are against the position of the relator. This case, it seems to me, presents, in all material respects, the same question presented in the great case of Yick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. 1064, 30 L. Ed. 220. The ordinance there under review prohibited the establishment and maintenance of laundries within the city of San Francisco not built of brick or stone without thO permission of the board of supervisors. It was the object of the ordinance to prevent the establishment and maintenance of laundries in wooden buildings. The Supreme Court of California held it to be a valid police regulation. The Supreme Court of the United States also admitted that the police power of the city extended over the subject-matter covered by the ordinance, but it held the ordinance void upon two grounds: First, that, on its face, it clearly vested in the city council an unconditioned and uncontrollable discretion with reference to the issuance or withholding of permits to establish and maintain laundries in the city. The ordinance, just as the one here under review, prescribed no conditions upon the satisfaction of which one became entitled to the permit. It left the whole matter to the arbitrary discretion of the board, and the court held the ordinance void on that ground. Second, it further held the ordinance void on the ground that, aside from what might be its natural or possible operation, it had, in fact, been so construed and so applied by the municipal authorities as to result in an actual discrimination. The court there laid down the rule which it has since followed in many cases that, in determining whether a given act or ordinance is violative of the fourteenth amendment, it will not confine itself to the mere language of the act or ordinance. but will look rather to its actual construction and administration by those whose duty it is, under the laws of the state, to construe and administer it. The facts of that case show that the ordinance under review had been so construed and so applied by the city authorities as to create against the relator a discrimination violative of the fourteenth amendment, and it was held that he was entitled to relief without reference to whether the ordinance was on its face void or not. Now, in the later case of Fischer v. St. Louis, 194 U. S. 361, 24 Sup. Ct. 673, 48 L. Ed. 1018, cited in the majority opinion, the court had under consideration merely the question as to the bare validity of the ordinance, considered aside from its actual operation. The court, in that opinion, calls attention to the fact that no complaint was made as to the actual operation of the ordinance, and that it was not contended that there had been any discrimination in the operation of the ordinance. This fact distinguishes the case from the case of Tick Wo v. Hopkins and from the case here presented. It is agreed in the record on this appeal that there are 23 other places in the city of Beaumont situated within 300 feet of a private residence and situated exactly under the same conditions as the relator as to sanitation and proximity to residence, where more than six head of stock are kept by the permission of the city council. In other words, it is admitted in this record that the relator is prosecuted for the violation of this ordinance, when 23 other persons in the city of Beaumont, situated exactly similar to himself in all material respects, have been granted permits under this ordinance to do the same act. 11 therefore appears that, as this ordinance is construed and administered by the city authorities, it has resulted in an actual discrimination against the relator, in violation of the fourteenth amendment. As stated in the case of Yick Wo v. Hopkins, it is not necessary for this court, in deciding the case at bar, to reason from the probable to the actual and pass upon rhe validity of this ordinance as tested merely by the opportunities which its terms afford of unequal and unjust discrimination in its administration; for the record, as presented, shows that the ordinance, in its actual operation and actual administration by the city authorities, has resulted in an unconstitutional discrimination against the relator. It was said in' the case of Yick Wo v. Hopkins: ‘Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discrimi-nations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.’
“The same must be said in the case at bar. Even though this ordinance be fair on its face, yet it appears from the record that it has been so construed and so operated by the city authorities charged with the duty of administering it as to result in a discrimination, whereby this relator is prosecuted for the doing of an act which 23 of his neighbors are permitted to do under the express sanction, of the city council.
“I find nothing in Mr. Dillon’s work on Municipal Corporations that militates against this view. In section 598, just following what is quoted in the majority opinion, the learned author says: ‘There are, however, limits to the principle [referring to the principle quoted in the majority opinion]. Thus, for example, if it is shown that the power £hus conferred upon the council or officer is in fact arbitrarily exercised against the individual under the sanction of the state authority to deprive him of rights which he ought to be permitted to enjoy by discriminating against him in the enjoyment of these rights, the Supreme Court of the United States has given redress when the case has come before it in such manner as to authorize the interference of a federal court’ — citing Yick Wo v. Hopkins, supra.
“It thus appears that Mr. Dillon recognizes the distinction between the doctrine of the case of Yick Wo v. Hopkins and the doctrine announced in Fischer v. St. Louis. The doctrine last quoted should apply to this case with peculiar force, for it is agreed in the statement of facts that the relator is situated as to sanitation and proximity to residence in the same way as 23 other persons to whom the city council has issued permits. Nq. reason is suggested in the record why he is thus discriminated against.
“I further find, in the recent case of Home Telephone Co. v. Los Angeles, 227 U. S. 278, 33 Sup. Ct. 312, 57 L. Ed. 510, that the Supreme Court has recently again held that, even though a state law or municipal ordinance be undiscriminating on its face, yet if it is enforced in such a manner as to create discrimination, relief will be afforded. The case also cites with approval Yick Wo v. Hopkins, and many other authorities, laying down the same rule. I am sure that, in the case of Fischer v. St. Louis, supra, the Supreme Court did not intend to overrule the case of Yick Wo v. Hopkins, or in any wise to limit the effect of that great ease. In the first place, the court, in deciding Fischer v. St. Louis, does not even refer to the case of Yick Wo v. Hopkins, and, in the second place, I find that, in many cases decided since Fischer v. St. Louis was decided, the court has expressly approved the holding in Yick Wo. v. Hopkins. See Home Telephone Co. v. Los Angeles, supra; also Lieberman v. Van de Carr, 199 U. S. 552, 26 Sup. Ct. 144, 50 L. Ed. 305. I think in this case that the agreed statement of facts shows that this ordinance is so administered as to create a discrimination. No reason is suggested in the record why the relator should be refused the permit when 23 of his favored neighbors are granted permits. ‘The discrimination is therefore illegal, and the public administration which enforces it is a denial of the equal protection of the laws and a violation of the fourteenth amendment of the Constitution. The imprisonment of the petitioner is therefore illegal, and he should be discharged.’
“If, however, it can be said that there is conflict between the case of Yick Wo v. Hopkins and Fischer v. St. Louis, then I am constrained to follow the first-cited case. I find that the opinion of the court in Fischer v. St. Louis is criticized as unsound by no less an authority than Judge A. C. Freeman, the great editor and annotator of the American State Reports, in his note to the case of Montgomery y. West, vol. 123, p. 41. 1 further find that the case of Tick Wo v. Hopkins has been cited with approval and followed by nearly all of the state courts before which this question has come for decision. See authorities cited in the first section of this opinion. It is approved by the great writers on constitutional law. It is generally regarded as one of the greatest decisions ever handed down by the Supreme Court of the United States, and is, in fact, almost a legal classic. I am unable to believe that a case so well considered, so often cited, and so universally approved. announces any doctrine that is unsound. The following quotation from the opinion states a principle which has been many times quoted with approval, and which, if followed, renders the ordinance here construed void beyond all question: ‘When we consider the nature and the theory of our institutions of government, the principles upon which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power. Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power. It is indeed, quite truq, that there must always be lodged somewhere, and in some person or body, the authority of final decision; and in many cases of mere administration the responsibility is purely political, no appeal lying except to the ultimate tribunal of the public judgment, exercised either in the pressure of opinion or by means of the suffrage. But the fundamental rights to life, liberty, and the pursuit of happiness, considered as individual possessions, are secured by those maxims of constitutional law which are the monuments showing the victorious progress of the race in securing to men the blessings of civilization under the reign of just and equal laws, so that, in the famous language of the Massachusetts Bill of Rights, the government of the commonwealth “may be a government of laws and not of men.” Eor, the very idea that' one man may be compelled to hold his life, or the means of living, of any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country- where freedom prevails, as being the essence of 'slavery itself.’
“I agree to this doctrine. A municipal ordinance which grants to certain municipal officers the unregulated, unconditioned, and consequently arbitrary and uncontrollable discretion to determine whether a citizen shall enjoy, within the city, the lawful use of certain property should be stricken down as void. The ordinance under review commits to the city council of the city of Beaumont the unregulated, unconditioned, and unrestrained discretion to determine whether or not a person residing in the city shall keep more than six head of stock. The ordinance prescribes no conditions or regulations governing the issuance or withholding of permits. A citizen of the city would be powerless in any court to enforce the impartial administration of this ordinance. The ordinance is, therefore, void, ‘for the very idea that one man may be compelled to hold his life or the means of living, or any material right essential to the enjoyment of life at the mere will of another seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself.’ ”

       Reported in iull in the New York Supplement; reported as a memorandum decisión without opinion in 64 Hun, 632.


author: HARPER, J.

text:
    GENTRY v. STATE.
    (No. 3202.)
    (Court of Criminal Appeals of Texas.
    June 26, 1914.
    Rehearing Denied Oct. 14, 1914.)
    Criminal Law (§§ 1095, 1102

      ) — Appeal— Statement of Facts and Bills of Exception-Time for Filing.
    On appeal from a conviction in the county court of simple assault, a statement of facts and bills of exception, filed more than 20 days after adjournment, will be stricken on motion.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2847; Dec. Dig. §§ 1095, 1102.]
    Appeal from Tarrant County Court; Jesse M. Brown, Judge.
    A. L. Gentry was convicted of simple assault, and he appeals.
    Affirmed.
    Capps, Cantey, Hanger & Short and Wm. L. Evans, all of Ft. Worth, 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.

Appellant was convicted in the county court of simple assault, and his punishment assessed at a fine of $5.

The term of court at which appellant was tried, adjourned May 2d, and the statement of facts or bills of exception were neither filed within the time allowed, having been filed more than 20 days after adjournment, consequently the motion of the Assistant Attorney Gteneral to strike out the bills of exception and statement of facts must be sustained. De Friend v. State, 153 S. W. 881; Durham v. State, 155 S. W. 222; Stephens v. State, 158 S. W. 531; Wilson v. State, 160 S. W. 454; Hampton v. State, 161 S. W. 966; Newsome v. State, 162 S. W. 891, and other cases cited in those opinions. In the absence of a statement of facts and bills of exception there is no question presented we can review. ,

The judgment is affirmed.


author: PRENDERGAST, P. J.

text:
    VICKERS v. STATE.
    (No. 3167.)
    (Court of Criminal Appeals of Texas.
    June 17, 1914.
    Rehearing Denied Oct. 14, 1914.)
    1. Incest (§ 5) — Elements of Offense — Relationship— Statutory Provisions.
    Under Pen. Code 1911, art. 4S7, providing that no man shall marry his wife’s daughter, article 488, providing that no woman shall marry her mother’s husband after the death of her mother, and article 486, providing that all persons who are forbidden to marry, who shall carnally know each other shall be punished, etc., both the stepfather and stepdaughter who have carnal intercourse are guilty of incest, although the intercourse takes place before the death of the woman’s mother.
    TEd. Note. — Eor other cases, see Incest, Cent. Dig. §§ 3, 4; Dec. Dig. § 5.]
    2. Witnesses (§ 288)— Redirect Examination — Explanation of Gross-Examination.
    In a prosecution for incest, where the defense, in cross-examining the prosecuting witness, attempted to show that her statement that the act occurred while the parties were standing and that conception resulted was unreasonable, it was proper for the state to show on redirect examination that defendant and witness had previously had intercourse on numerous occasions.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1003; Dec. Dig. § 288.]
    3. Criminal Law (§ 369) — Evidence—Prior Acts.
    In a prosecution for incest, prior acts of intercourse between the parties,' a stepfather and his young stepdaughter, are admissible as original evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 822-824; Dec. Dig. § 369.]
    4. Criminal Law (§ 829) — Instructions — Corroboration or Accomplice.
    In a prosecution for incest, where the prosecuting witness had testified to acts of intercourse prior to the one charged in the indictment, a charge that the witness was an accomplice, and that defendant could not be convicted upon her testimony unless it was corroborated by other evidence, outside of her testimony, tending to connect the defendant with the commission of the offense, and that the evidence of prior acts could only be considered for the light it might show upon the act charged, was correct and sufficient, and it was not error to refuse a requested charge that one part of the accomplice’s testimony could not be considered as corroborative of another part, and that her testimony as to prior acts was not corroboration of the testimony as to the act charged.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.]
    5. Criminal Law (§ 721) — Conduct of Counsel — Failure of Accused to Testify —Reference in Question.
    In the third trial of a prosecution for incest, where the accused, who did not testify at either of the former trials, was asked whether he had ever before had an opportunity to give a reason for certain things concerning which he had testified, and an objection to the question was sustained by the court without the ground being made known to the jury, there was not such a reference to the failure of defendant to testify at the previous trials as to require a reversal, especially where the court charged the jury not to consider anything they might know about the former trials.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1672; Dec. Dig. § 721.]
    6. Criminal Law (§ 721) — Conduct of Counsel — Failure of Accused to Testify —Reference in Question.
    A slight indirect allusion to the failure of defendant to testify does not constitute reversible error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1672; Dec. Dig. § 721.]
    Appeal from District Court, Williamson County; Chas. A. Wilcox, Judge.
    Jim Vickers was convicted of incest, and
    he appeals.
    Affirmed.
    J. F. Taulbee and Richard Critz, both of Georgetown, 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 incest, and his punishment assessed at the lowest prescribed by law. This is the second appeal in this case. The first is reported in 1S4 S. W. 578, from which a sufficient statement of the case can be seen. The evidence of the corroboration on this trial is stronger than the record showed in the other appeal. None of the questions decided on that appeal are raised in this. The evidence was amply sufficient to sustain the conviction on this trial. In fact, appellant, neither in his brief, nor oral argument presenting the case, contested that point.

Our statute (article 487, P. C.) says no man shall marry his wife.’s daughter. Article 488 is: No woman shall marry her mother’s husband after the death of her mother. Article 486 is: All persons who are forbidden to marry, who shall intermarry or carnally know each other, shall be punished by imprisonment in the penitentiary not less than two nor more than ten years. The technical name of this offense is incest. Appellant contends that, because article 488 says no woman shall marry her mother’s husband after the death of her mother, therefore the man who has carnal intercourse with his wife’s daughter cannot be guilty of incest, because, as he claims, the stepdaughter herself is not prohibited from marrying her stepfather after the death of her -mother. Under no contingency do we think appellant’s contention can be maintained. The stepfather in this case is charged with the offense. Clearly and without any doubt, he could be guilty under the very terms of the law, and we think there could be no question but what a stepdaughter could also be guilty.

Appellant’s first bill shows that the prosecuting witness, Mrs. Ollie Taylor, formerly Ollie Walston, in her direct examina-' tion testified that in January, 1911, her stepfather, appellant, had sexual intercourse with her, fixing a specific time and place where the act occurred. On cross-examination she testified that she did not want to do it; that the appellant gave her 50 cents to do it; that she never would do it until he gave her the 50 cents, and that was the reason she. did it;, that she did not know whether she would have done it or not, if appellant had not given her the 60 cents; that the act was committed while she and appellant were standing up. The state was then permitted, over appellant’s objections, in reexamination of her, to have her testify that the said act was not the first, but that he had been doing it to her ever since she was 14 years of age, and at the time this act occurred she was between 17 and 18 years of age. Appellant objected to this latter testimony of other acts, because it was irrelevant, immaterial, and prejudicial; that it threw no light on the transaction inquired about, and might call for an answer that would show him guilty of rape, and was not -in response to any matter brought out by him.

It is clear from this record that appellant was attacking this witness and her testimony as unreasonable and false. He showed by her that when the prosecuting officers first heard of the claimed offense they interviewed her, and she told them that, this act was the only one appellant ever had with her, and that she so told the grand jury when she was first before it. She explained why she so testified. The grand jury did not indict him when she first testified before it. It was when she appeared the second time, and testified that this was not the only act appellant had with her; but that he had repeatedly before then had intercourse with her, and this relationship had existed since she was 14 years of age, that the grand jury then indicted. And he inquired of her if the grand jury did not in effect tell her that her evidence was too unreasonable, because of her testimony that this act was the only one appellant had ever had with her, and that by it, they standing up at the time, she conceived and afterwards gave birth to a child. Thus it will be seen that by appellant, on cross-examination, first bringing out what position the parties occupied when the act occurred, and attacking her testimony as unreasonable and false, because she claimed that at this time she conceived, made it necessary for the state to meet this by proving, as it did, that this was not the first act, but that this relationship and acts of the kind had frequently occurred since she was 14 years old and up to this time. If for no other reason, this testimony- would have been admissible to meet appellant’s contentions.

But it is settled now in this state that prior acts of sexual intimacy between an accused and his young stepdaughter in an incest case is admissible as original testimony. Battles v. State, 63 Tex. Cr. R. 154, 140 S. W. 783; Burnett v. State, 32 Tex. Cr. R. 86, 22 S. W. 47; Barrett v. State, 55 Tex. Cr. R. 182, 115 S. W. 1187; Burford v. State, 151 S. W.. 508. Unfortunately the decisions of this court until recently have not been uniform. Some of them have held that other acts than the one specifically charged in incest could not be proven. As shown in the Battles Case,, such holding was contrary to the great weight of authority and to reason of the decisions of this court holding such evidence inadmissible. Mr. Wigmore, in his exhaustive and elaborate work' on Evidence (volume 5, p. 44), as a note to his section 398, says:

“This opinion merits the censure of the Texas bar. It not only overthrows exact precedents, but in so doing it introduces, upon the scantiest consideration, a heretical and inferior rule, and creates unnecessary difficulties in the proof of this crime.”

Among other cases holding that other acts in incest cases can be shown, he cites Adams v. State, 92 S. W. (Ark.) 1123; People v. Stratton, 141 Cal. 604, 75 Pac. 166; People v. Holler, 142 Cal. 621, 76 Pac. 500; People v. Morris, 3 Cal. App. 1, 84 Pac. 463; Lipham v. State, 125 Ga. 52, 53 S. E. 817, 114 Am. St. Rep. 181, 5 Ann. Cas. 66; State v. Judd, 132 Iowa, 296, 109 N. W. 892, 11 Ann. Cas. 91; State v. Pruitt, 202 Mo. 49, 100 S. W. 431, 10 Ann. Cas. 654. And he cites a large number of other cases so holding in adultery, bigamy, crim. con., fornication, and rape. See, also, People v. Turner, 260 Ill. 84, 102 N. E. 1036.

The court charged the jury as follows:

“You are instructed that the witness Ollie Taylor, formerly Ollie Walston, is what is known in law as an accomplice; and with reference to the testimony of accomplices you are instructed that a conviction cannot be had upon the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the offense charged, and the corroboration is not sufficient if it merely shows the commission of an offense. You are therefore instructed that you cannot find the defendant guilty upon the testimony of the said Ollie Taylor, formerly Ollie Walston, unless you first believe beyond a reasonable doubt that the testimony of the said Ollie Taylor, formerly Olli.e Walston, is true, and that it shows the guilt of the defendant, and unless you further believe beyond a reasonable doubt that there is other evidence in the case, outside of the testimony of the said Ollie Wal-ston, tending to connect the defendant with the commission of the offense charged.
“You are further instructed that if there is any evidence before you with reference to any of the acts of intercourse between the defendant and Ollie Walston, other than the act alleged to have been committed on or about the 1st day of January, 1911, then you are instructed that the defendant is not on trial for such other acts, if any there were, and cannot be convicted for such other acts, if any there were; but any testimony with reference to suet other acts can be considered by you, if you do consider it at all, only for the purpose for which it was admitted, and that is for whatever light, if any, it may shed upon the transaction for which the defendant, is on trial — that is, the alleged act of intercourse alleged to have occurred behind the chimney on or about the 1st day of January, 1911.”

Appellant complains that the court committed reversible error in refusing to give his special charge as follows:

“As told in the main charge, the witness Ollie Taylor, formerly Ollie Walston, is n.n accomplice, and you are charged that an accomplice cannot corroborate herself, and one part of an accomplice’s testimony cannot be considered by you as corroborative of another part; and in this connection you are told that this defendant is on trial for the alleged act of intercourse alleged to have occurred out by the chimney early one morning about January 1, 1911, and you are told you cannot consider her testimony that there were other acts of intercourse than this alleged one as corroboration that the one out by the chimney, if any, did in fact occur.”

In our opinion this special charge was not authorized or required by the testimony, and the court’s charge above copied properly presented the question to the jury, and was all that was necessary or proper to charge on the ■ subject. It complies with the statute and our decisions. No complaint was made of the court’s charge in the lower court or this. The objection is to the refusal .of the court to give his special charge. The court, as shown above, in his charge told the jury that they could not convict appellant on Ollie Taylor’s testimony, unless they believed it was true, and it showed the guilt of the defendant, “and unless you further believe beyond a reasonable doubt that there is other evidence in the case, outside o/ the testimony of the said Oilie Walston, tending to connect the defendant with the commission of the offense charged.”

The only other question complained of is presented by appellant’s third bill of exceptions. This bill shows that after the state had completed its testimony and rested, and several witnesses had been put upon the stand by the defendant, and it had been developed before the jury that this case had been twice before tried, and while appellant was on the stand as a witness in his own behalf, and had completed his testimony on direct examination, on cross-examination the district attorney, in a loud, threatening, and angry voice and manner, began cross-examining him, and the following questions were asked, and answers given by him:

“Q. Did you love the woman you married? A. Yes, sir. Q. And love her now? A. Yes, sir. Q. Was she good to you? A. Yes, sir. Q. And kind and gentle? A. Yes, sir. Q. And loving? A. Yes, sir. Q. And she told you, like all the rest of them, she believed that you had ruined her daughter? A. She didn’t. She kept me there for three months, and told me she believed I was innocent. Q. She told you —your own wife, that loves you, that had never done yon a wrong or injury — that you was the author of that child? (Judge Critz objected to the form of the question. The Court: The objection is sustained; argumentative.) Q. Well, did she? A. She did; yes, sir. O. Why did she do that? A. Well, you ask her. Q. I am asking you, Mr. Vickers, why did your wife of your bosom say that to yoji? A. I can tell you my reason for believing-'^hy, if you want to know. Mr. Taulbee: Now I insist that he be allowed to tell his reason. I think it is nothing more than fair to the witness. Q. And you have never even had an opportunity to do that before to-day, have you?, (To which last question the defendant then and there in open court excepted)”

—for the reason in substance that this was an allusion to appellant’s failure to testify on the former trials. The bill further shows that there had been two former trials, and that the appellant had testified in neither of them. The objections on this ground, the bill states, were not made in the presence of the jury; that after appellant had taken his bill; the court, in open court, instructed the jury to disregard the question. The court, in' approving the bill, does so with this explanation:

“When the above question was asked, defendant’s attorney arose and stated that he excepted to the question. I at once stated to the jury that they should disregard the question, and stated to counsel that they could put their ground of exception in the bill without there stating them. The examination proceeded at once, the whole incident occupying only a few seconds. Furthermore, there was no evidence before the jury that the defendant had not testified on the former trial, and nothing to indicate such fact, unless the question excepted to, as above presented, called attention to it.”

In addition to this, the court charged the jury, in subdivision 6, as follows:

“You are further instructed that, if any juror in this case has any knowledge of any fact with reference to this case, or to any former trial of this case, or with reference to any witness in the case, which may have been acquired by such juror from any source other than from the witnesses on the trial of this case, then you are instructed to disregard such knowledge, if any, of such facts acquired from extraneous sources, and make no mention of same; but you will confine your deliberations solely to the evidence introduced upon the trial of this case, and to the law as given you in charge by the court,”

We think by no reasonable construction could the jury, by what is shown by this bill, have drawn the inference that it was an allusion to appellant’s failure to testify on either of the former trials, and that what the court did, and the charges he gave on the subject, and the verdict of the jury fixing the lowest penalty, excludes any idea that the jury were in the slightest influenced by it.

Even if it could be considered that the question asked was an indirect allusion to appellant’s failure to testify in the two previous trials, it could present no stronger ease for reversal than where- the appellant has not testified, and a slight indirect and bare allusion to that fact had been made; and in such case this court has repeatedly held no reversible error is shown. See Gatlin v. State, 163 S. W. 428, and cases cited; Coffman v. State, 165 S. W. 947, and cases therein cited; Cooper v. State, 162 S. W. 364, and eases therein cited.

The judgment is affirmed.


text:
    TAYLOR v. STATE.
    (No. 3169.)
    (Court of Criminal Appeals of Texas.
    June 17, 1914.
    Rehearing Denied Oct. 14, 1914.)
    1. Homicide (§ 313)—Verdict— Sufficiency.
    A verdict in a homicide case, wherein the court instructed that there was no murder of the first degree in the ease, and submitted only murder on implied malice, need not state the degree of murder of which the jury find the defendant guilty.
    [Ed. Note.—For other cases, see Homicide, Cent. Dig. §§ 671-675; Dec. Dig. § 313.]
    2. Witnesses (§ 268)—Cross-examination-Hearsay.
    Where counsel for defendant in a homicide case elicited from a witness on cross-examination a partial answer to a question as to why he did not have defendant arrested on learning that he had stolen his hog, the court properly permitted the witness to state his reason in full, though this included advice given him by a third person.
    [Ed. Note.—For other eases, see Witnesses, Cent. Dig. §§ 931-948, 959; Dec. Dig. § 268.]
    3. Criminal Law (§ 1038)—Appeal.
    Objections to the charge, which are first made after verdict in the amended motion for new trial, cannot be considered on appeal in a criminal case.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 2646; Dec. Dig. § 1038.]
    4. Criminal Law (§ 1156)—Appeal—Discretionary Ruling — Refusal of New Trial.
    The denial of a new trial sought in a criminal case for newly discovered evidence, impeaching in nature, will not be disturbed on appeal, in the absence of an abuse of discretion.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 3067-3071; Dec. Dig. § 1156.]
    Appeal from District Court, Liberty County; L. B. Hightower, Judge.
    Gilbert Taylor was convicted of murder, and appeals.
    Affirmed.
    E. T. Branch, of Houston, and Stevens & Stevens, of Liberty, .for appellant. C. E. Lane, Asst Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted of murder, and his punishment assessed at 20 years’ confinement in the state penitentiary.

Appellant was convicted of hilling Ova Nugent. Alfred Nugent was a material witness for the state, and had testified to recognizing the voice of appellant when they first rode up to his house that night; that after two shots had been fired, he went out of the house and saw and recognized appellant, who then shot at him.

The theory of the state was that appellant went to Nugent’s house that night to kill the father, Alfred Nugent, and the shot, was fired with that intent, consequently there is no murder of the first degree in the case, and the court so instructed the jury, and submitted only murder upon implied malice. Under such circumstances it was not necessary for the jury to state in their verdict the degree of murder of which they found appellant guilty.

Alfred Nugent having testified that he had been informed that appellant had stolen one of his hogs, he went to appellant’s place and saw one of his hogs in appellant’s potato patch; that he knew the hog; that appellant saw him looking at the hog, and after he satisfied himself that it was his hog, he returned home, going by Orillian Fruger’s. This is as far as the state went into the matter of hog stealing, when on cross-examination the following proceedings were had: Appellant, after making some inquiries in regard to the identification of the hog, and his testimony at the examining trial in an effort to show that the testimony was not true, asked the witness: “Why didn’t you go then, after you saw your hog, and have him [defendant] arrested?” To which the witness replied that he was going to have defendant arrested that night, but that Orillian Fruger told him just to stop this—at this point the defendant objected to the witness stating what Orillian Fruger had said, and over his objection, the court permitted the Witness to say that his reason for not having appellant arrested for the theft of the hog that evening was that Orillian Fruger had requested him not to do so, saying:

“He is a brother-in-law of mine, and he just got out of one scrape and don’t put him in another; that he would go and see appellant and have him pay for the hog; that if witness would give him, Fruger, until the next day he would fix it up.”

As appellant pursued the line of inquiry he did on" cross-examination, and having propounded the interrogatory desiring to know the reason why he had not had appellant arrested and elicited a part of the answer, it was proper for the court to permit the witness to state his reason in full. Of course it would not have been admissible in behalf of the state as original testimony, but when the defendant took him on cross-examination and went into this matter of his own volition, then it was permissible for the court to permit the witness to give a full answer to the question propounded. The state elicited no part of the testimony objected to, but only insisted that as appellant had propounded the interrogatory and elicited from the witness a part of the answer, it was but fair to the witness to let him finish his answer to the question, and the court so held.

This case was tried last February. At the time the charge was submitted to appellant’s counsel no objections were made thereto in any respect. In the amended motion for a new trial, however, he assigns several errors as to the charge. Under the law as passed by the last Legislature, we cannot consider such complaints, having been made for the first time after the verdict, in the amended motion for new trial.

The only other complaint is that the court erred in not granting a new trial on account of newly discovered evidence. This testimony would be of an impeaching nature only if true, and as the state contested the motion and introduced evidence thereon, the court, after hearing the evidence in regard thereto found against appellant and overruled the motion. We cannot hold that he abused his discretion in so doing.

The judgment is affirmed.