text:
    HART v. STATE.
    (No. 3010.)
    (Court of Criminal Appeals of Texas.
    March 4, 1914.
    On Motion for Rehearing, April 22, 1914.)
    1. Perjury (§ 26) — Indictment.
    While the truth of the alleged false statement must be negatived in an indictment for perjury, no particular language is required; it being sufficient if the language used in the indictment specifically negatives the truth of the false statement.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 90-94; Dec. Dig. § 26.]
    2. Perjury (§ 26) — Indictment.
    The indictment for perjury, committed in a prosecution for theft, alleged that accused did falsely testify that W. was in a certain house from 9 o’clock to 11 o’clock on the night of the theft, and never left the house during that time, which statement was material to the issue, whereas, in truth and in fact, the said W. was, between 9 and 11 o’clock p. m. on that day, on or near the corner and intersection of East Fifth street and R. street, and did then and there commit the theft, and further alleged that the statement by accused that W. was in such house from 9 to 11 o’clock on the night of the theft “was false and untrue.” Held, that the indictment sufficiently negatived the truth of the alleged false statement by accused.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 90-94; Dec. Dig. § 26.]
    3. Perjury (§ 29) — Proof.
    In a prosecution for perjury for falsely stating that W. was in a certain house between the hours of 9 and 11 on a certain night, when in truth W. was at that time on a certain street comer and then and there committed the theft, it was not necessary to prove that accused was at the place of the theft, or that W. committed the theft.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 97-106; Dec. Dig. § 29.]
    4. Perjury (§ 33) — Prosecution—Sufficiency of Evidence — Falsity of Testimony.
    In a prosecution for committing perjury in a theft case by testifying that the alleged thief was in a certain house at a certain time, when the thief was in fact on a certain street corner where the theft was committed, evidence held to sustain a finding that accused’s testimony was false.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 117-124; Dec. Dig. § 33.]
    5. Criminal Daw (§ 825) — Instructions — Credibility — “Credible Witness.’’
    An instruction that a credible, witness was one who, being competent to give testimony, is worthy of belief was sufficient, in the absence of a requested charge further defining the words “credible witness.”
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2005; Dec. Dig. § 825.;
    For other definitions, see Words and Phrases, vol. 2, pp. 1710, 1711.]
    On Motion for Rehearing.
    6. Perjury (§ 33) — Proof—Circumstances.
    Perjury may be proved by circumstantial evidence..
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 117-124; Dec. Dig. § 33.]
    Appeal from District Court, Travis County; George Calhoun, Judge.
    Lewis Hart was convicted of perjury, and appeals.
    Affirmed.
    R. E. Masterson, of Beaumont, and Henry Faulk and John E. Rylee, both of Austin, for appellant. G. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted of perjury, and has appealed to this court.

The main attack is made on the sufficiency of the indictment, and we copy herein that portion to which the exception relates: “ * * * At and upon the trial of the said issue so joined between the parties as aforesaid, it then and there became and was a material question whether said Matilda Williams was on and near the corner and intersection of East Fifth street and Red River street in Austin, Travis county, Tex., on the 8th day of August, A. D. 1913, between 9* and ll o’clock p. m., and did then and there commit theft from the person of one D. A. Patterson, and the said Lewis Hart, being so sworn as aforesaid, then and there, on the trial of said issue, upon oath as aforesaid, did falsely, willfully, and deliberately, before-the said Hon. G. W. Mendell, judge as aforesaid, depose and state and testify, among, other things, in substance and to the effect following: That saidi Matilda Williams was-in Emily Hodge’s house from 9 o’clock to 11 o’clock on the night of August 8, A. D. 1913, and never left said house during said time, which said statement so made by the said-Lewis Hart was then and there material to-the issue in said cause, whereas, in truth and:, in fact, the said Matilda Williams was, between 9 and 11 o’clock p. m. on the 8th day of August, A. D. 1913, on and near the corner- and intersection of East Fifth street and Red-River street in Austin, Travis county, Tex., and did then and there commit the offense-of theft from the person of one D. A. Patterson, and the said statement by the said' Lewis Hart that said Matilda Williams was-in the house of Emily Hodge from 9 o’clock to 11 o’clock on the night of August 8,. A. D. 1913, as hereinbefore stated, was false and untrue, and which said statement so-made by the said Lewis Hart as a witness in said case in the manner and form as aforesaid was deliberately and willfully made, and was deliberately and willfully false, as he, the said Lewis Hart then and there well knew, against the peace and dignity of the state.”

The first criticism is that the alleged-false statement must be negatived, and appellant cites a number of cases so holding, and it may be said that is the rule that has-been adopted and followed in this court. Gabrielsky v. State, 13 Tex. App. 428; Turner v. State, 30 Tex. App. 691, 18 S. W. 792. These cases, in announcing the rule that the alleged false statement must be specifically negatived, have been followed; but in no case has any particular form of negation nor specific words been adopted. It is sufficient if the language used in the indictment does specifically negative the truth of the false statement. State v. Lindenburg, 13 Tex. 28. And in the case of Chavarria v. State, 63 S. W. 313, an indictment almost in terms of this one is sustained, pointing out that in the case of Ferguson v. State, 36 Tex. Cr. R. 60, 35 S. W. 369, the earlier case of State v. Powell, 28 Tex. 627, was overruled. So it may be said that what has been held by this court is that a general statement that the person or persons “deliberately, willfully, and falsely” swore to a statement is insufficient; but in the indictment there must be a specific allegation that the statement so sworn to is untrue.

Now, is there such an allegation in this indictment? We think clearly so, for, after stating that the defendant “did falsely, willfully, and deliberately state that Matilda Williams was in Emily Hodge’s house from 9 o’clock to 11 o’clock on the night of August 8, 1913, and never left said house during.said time, which said statement was then and there material to the issue in said cause, whereas, in truth.and in fact, the said Matilda Williams was, between 9 and 11 o’clock p. m. on the 8th day of August, A. D. 1913, on and near the corner and intersection of .East Fifth street and Red River street, and did then and there commit the offense of theft from the person of one D. A. Patterson,” later in said indictment it alleges that “the said statement made by appellant that Matilda Williams was in the house of Emily Hodge from 9 o’clock to 11 o’clock on the night of August 8, 1913, as hereinbefore stated, was false and, untrue.” What more specific negation of the truth of the statement of appellant could have been made in the indictment? and all that was required at common law and the decisions of this state is that the truth of the statement must be specifically negatived.

In the cases of Wynne v. State, 60 Tex. Cr. 660, 133 S. W. 682, and McCoy v. State, 43 Tex. Cr. R. 607, 68 S. W. 686, it was held by this court: “Where the alleged false statement was that defendant testified to an alibi for a third parts’- — that is, that the defendant was at a certain place at a stated time — the assignment of perjury to be good must allege that the person charged with the crime was present when and where it was committed. An assignment that the party charged with the crime was not at the place testified to by the witness would be an immaterial allegation.” So it is seen that the materiality of this defendant’s testimony consisted in his swearing that appellant was not at the corner of East Fifth street and Red River street by testifying that at this particular time she was at Emily Hodge’s house, and for this reason could not have been at the place where the robbery took place. So it was necessary under the McCoy and Wynne Cases supra, to allege that she was at the corner of East Fifth and Red River streets at the time the theft took place, and this the indictment in this case does allege by specific allegations.

Appellant then assigns that, to prove the offense of perjury as alleged, it is necessary to prove by two witnesses, or one witness strongly corroborated by circumstances, that appellant was at the place where the theft took place, and, if this is true, perhaps it might be said that she is shown to have been at such point and committed the theft by only one witness, Mr. Patterson. But the issue in this case was not whether Matilda Williams in fact committed the theft, but was she at the place where appellant testified she was? She might be acquitted of the crime, yet in her defense appellant swore to a state of facts material to her defense, and, if this state of facts is shown to be false, appellant would be guilty of perjury. Mr. Patterson not only swore that Matilda Williams was at the corner of Fifth and Red River streets and stole his watch during those hours, thus making it impossible for her to have been at Emily Hodge’s house, but in addition to this Policemen Martin, Oyervides, and Grizzard swear that Matilda Williams was not at the house of Emily Hodge-at the .time appellant testified she was there;, that they saw her at another and different place. Thus the fact of the falsity of his testimony was shown by four witnesses, all of whom are credible witnesses in so far as this record discloses.

The court instructed the jury: “A credible witness ‘is one who, being competent to give evidence, is worthy of belief.’ ” This definition was approved in the case of Kitcken v. State, 29 Tex. App. 46, 14 S. W. 392, and is the definition given in Bouvier’s Law Dictionary. No special charge defining the words “credible witness” was requested by appellant, and under such circumstances-the definition as given was sufficient. If appellant desired a more full and complete definition of those terms, he should have requested it to have been given. The only special charge requested by appellant was given: “You are further instructed if, from the evidence, you believe that D. A. Patterson-is not a-credible witness, you must disregard the whole of his testimony.”

The only other ground in the motion alleges the insufficiency of the testimony. This-was a question for the jury to determine, for, if the testimony offered in behalf of the state is believed, it supports the verdict.

The judgment is affirmed.

On Motion for Rehearing.

Appellant has filed a motion for rehearing in which he earnestly insists that we erred: in sustaining the indictment in this case. In his motion he copies that part of the-indictment wherein it is alleged that on the-trial of Matilda Williams that appellant testified “that Matilda Williams was in Emily Hodge’s house from 9 to 11 o’clock on the night of August 8, 1913, and never left said house during said time, whereas, in truth and in fact, the said Matilda Williams was, between 9 and 11 o’clock p. m. on the 8th day of August, 1913, on and near the corner and intersection of East Fifth street and Red River street,” claiming that both are affirmative allegations and neither one is a negative of the other, and, if this was all that was in the indictment, his position might be tenable; but he neglects to copy another portion of the indictment wherein it is alleged “that the statement that the said Matilda Williams was in the house of Emily Hodge from 9 to 11 o’cloele on the rnght of August 8, 1918, was false and untrue.” This is a specific negative of the fact that Matilda Williams was at the house named, and then the indictment follows with the usual allegation, ‘‘and which said statement so made was deliberately and willfully made, and was deliberately and willfully false, as he then and there well knew.” The rule is that the truth of the alleged false statement must be specifically negatived; but no particular words are required to be used, but any language can be used that does negative the averment specifically.

Appellant also apparently is laboring under the impression that the testimony of D. A. Patterson that Matilda Williams was guilty of theft from his person must-be corroborated; that was true when Matilda Williams was on trial for that offense, but appellant is not charged with that offense, but is charged with committing perjury on that trial by swearing to a state of facts that would render it impossible for Matilda Williams to have been the person who committed that theft, and the issue on this trial is not whether Matilda Williams was in fact guilty of that offense, but the issue is: Did appellant swear falsely to material facts on that trial? He swore that Matilda Williams was at the house of Emily Hodge from 9 to 11 o’clock on that night, and she did not leave that house during that time. The theft took place between 9 and 11 o’clock; in fact the time, as fixed by Mr. Patterson, was about 10 o’clock, and he swears that the theft was committed by Matilda Williams on the corner of Fifth and Red River streets. This is one witness who swears positively to the falsity of appellant’s testimony on the trial of Matilda Williams.

Messrs. Martin, Oyervides, and Grizzard all swear they saw Matilda Williams at a place other than Emily Hodge’s house between the hours of 9 and 11 o’clock on that night, thus showing the falsity of appellant’s testimony by four witnesses. Appellant says that, as the time these latter witnesses saw Matilda was not the exact time when Patterson says the theft took place, this testimony would not be material. But their testimony would show and did show : that his testimony as to the hour he said appellant was at the Hodge house was false, and it was not necessary to show her exact whereabouts by them at the hour the theft took place; only those who saw her commit the theft, if she did, could swear to her then whereabouts.

Appellant overlooks the fact that perjury can be proven by circumstantial evi; dence as well as positive testimony. Beach v. State, 32 Tex. Cr. R. 253, 22 S. W. 976; Franklin v. State, 38 Tex. Cr. R. 348, 43 S. W. 85; Miles v. State, 165 S. W. 567, recently decided, and eases there cited. In this case one witness, Mr. Patterson, swears positively . that Matilda Williams was not at the Hodge house at the very time the theft took place, and swears she was the thief, and, if it should be that the exact time the other witnesses saw Matilda was not at this time, yet it was within the time fixed by appellant that he saw Matilda at the .Hodge house, and would be strong circumstantial proof that he swore falsely in swearing that she was at the Hodge house the very hour the theft took place.

The motion for rehearing is overruled.

DAVIDSON, J., absent at consultation.


source: Caselaw Access Project

author: PRENDERGAST, P. J.

license: Public Domain

text:
    LOPEZ v. STATE.
    (No. 2923.)
    (Court of Criminal Appeals of Texas.
    April 8, 1914.
    Rehearing Denied April 29, 1914.)
    1. Criminal Law (§ 1093) — Evidence—Objections — Sufficiency.
    A bill of exceptions, complaining of the admission of testimony of certain witnesses some of whose testimony was competent, must point out the particular portion of the testimony claimed to be inadmissible, and objections to the whole of it are insufficient.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2828-2833, 2919, 2920; Dec. Dig. § 1093.]
    2. Criminal Law (§ 366) — Evidence—Res Gestae.
    A statement by decedent, made a few minutes after he was shot, is admissible as a part of the res gestee.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 806, 811, 814, 819, 820; Dec. Dig. § 366.]
    3. Witnesses (§ 268) — Cross-examination-Extent.
    Where a witness for accused was not interrogated on cross-examination about any matter not brought out by accused, it was not error to permit the state, on the cross-examination, to ask the witness about a written statement she had made; the statement not being introduced nor offered in evidence.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 931-948, 959; Dec. Dig. § 268.]
    4. Homicide (§ 340) — Appeal—Harmless Error — Instructions.
    Where accused was convicted of manslaughter, the error in a charge on murder in the second degree, arising from the use of the word “gun,” instead of the word “pistol,” was immaterial.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 715-717, 720; Dec. Dig. § 340.]
    5. Criminal Law (§ 1144) — Appeal — Presumptions.
    Where the record does not show that the court did not submit its charge to the attorneys for both sides after the evidence was concluded and before the argument began, as required by law, the court on appeal will presume that the law was complied with.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2764, 2766-2771, 2774-2781, 2901, 3016-3037; Dec. Dig. § 1144.]
    6. Criminal Law (§ 1122) — Instructions— Objections — Bill of Exceptions.
    A bill of exceptions, which complains of the refusal of a special charge, must show that accused at the proper time objected to the court’s charge, and presented the special charge before the argument was begun, and where the bill of exceptions is silent as to the time of the presentation of the special charge, and it was not filed until nearly three months after the adjournment of the term, the question will not be reviewed, because the court will presume that the requested charge was not presented in time.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2940-2945; Dec. Dig. § 1122.]
    7. Criminal Law (§ 1173) — Appeal—Harmless Error — Refusal op Instructions.
    Where the evidence of the state clearly showed that the confession of accused was voluntarily made and understood, and accused’s testimony to the contrary was weak, the error, in refusing to charge that if the confession was not voluntarily made, or without a full understanding of the nature of it, it must be disregarded was not prejudicial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3164-3168; Dec. Dig. § 1173.]
    8. Criminal Law (§ 971) — Verdict—Sufficiency.
    A verdict, “We the jury find the Defenda—Guilty of Man Slaughter and Assess his punishment at two years in the State Penitentiary,” signed by a juror, followed by the word, “Fourman,” is sufficient as against a motion in arrest.
    [Ed. Note.—For other cases, see Criminal Law. Cent. Dig. §§ 2463-2468; Dee. Dig. § 971. ]
    9. Criminal Law (§ 884) — Punishment—Assessment by Jury.
    In view of the invalidity of Suspended Sentence Act April 3, 1913 (Acts 33d Leg. c. 132), the court may direct the jury to assess the penalty, instead of merely finding accused guilty, and the court may then afterwards impose the punishment.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2107, 2526; Dec. Dig. § 884.]
    Appeal from District Court, Bell County; John D. Robinson, Judge.
    Manuel Lopez was convicted of manslaughter, and he appeals.
    Affirmed.
    W. K. Saunders, of Belton, Lewis H. Jones, of Rogers, and Mallory B. Blair, of Belton, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

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

   PRENDERGAST, P. J.

Appellant appeals from a conviction of manslaughter with the lowest penalty assessed.

The court charged on murder in the first degree, and in the second degree, on manslaughter and self-defense. The evidence was amply sufficient to sustain a conviction of murder in the second degree if the preponderance of the evidence was not to that effect. The state’s evidence would show this. The evidence for the defendant would have authorized an acquittal on the ground of self-defense.

The state, by four witnesses, proved up the execution of the written confession of appellant. It was then introduced in evidence. Appellant has some bills to the introduction of the evidence by the four several witnesses who proved up the execution of said confession. They’ quote substantially, if not. literally, the whole of each of the witnesses’ testimony on the subject. All this testimony was admissible. Even if there had been any particular portion of the testimony of the respective witnesses inadmissible, none of appellant’s bills point out any such matter. The objections are made to the whole of it. Ortiz v. State, 151 S. W. 1057, and authorities there cited. There are many other decisions to the same effect, both before and since the Ortiz Case, unnecessary to cite.

Appellant objected to the testimony of Gypriano Godina, a son of the deceased, as to what the deceased told him, about appellant shooting him, very soon after the shooting. The court, in qualifying the bill states: “This evidence was admitted as res gestee, the evidence showing that the conversation occurred a few minutes after the shooting.” As the bill is qualified, this evidence was clearly admissible as res gestse.

The court properly permitted the state, in cross-examination of appellant’s wife, to ask her about a written statement she had made concerning the killing, the court qualifying appellant’s bill on the subject by stating: “The witness was not interrogated about any matter not brought out by the defendant. The state had the written statement of the witness, but it only related to the killing, which she had testified about on direct examination for the defendant.” The written statement was not introduced nor offered in evidence, and not shown by this record.

The indictment charged that appellant killed deceased by shooting him with a pistol. The court, in submitting murder in the second degree, used the word “gun” instead of “pistol.” Even if the court’s using the word “gun” instead of “pistol” was error, it was immaterial, as appellant was acquitted of murder in the second degree, and convicted of manslaughter only. In his charge submitting manslaughter he did not use the word “gun.” Under our decisions a gun is a pistol and a pistol a gun. In no event was the court’s charge error. Douglass v. State, 26 Tex. App. 109, 9 S. W. 489, 8 Am. St. Rep. 459; Brown v. State, 43 Tex. Cr. R. 296, 65 S. W. 529; Monk v. State, 27 Tex. App. 450, 11 S. W. 460; Johnson v. State, 29 Tex. App. 152, 15 S. W. 647; Hernandez v. State, 32 Tex. Cr. R. 271, 22 S. W. 972.

Appellant requested, and the court refused to give, his special charge to this effect: “If you find the confession of defendant was not voluntarily made, or made without a full understanding, of the nature of it, you will disregard such confession, and consider it for no purpose.” This case was tried some time after the act of April 5, 1913 (Acts 33d Leg. e. 138), amending articles 735, 737, 743, and adding 737a to our Oode of Oriminal Procedure, was in force. These articles, as amended, in effect require the court to submit his charge to the attorneys for both sides after the evidence is concluded and before the argument begins. The record does not disclose that this was not done in this case, and we must therefore presume it was. The record further does not disclose that appellant, at the proper time, made any objection to the court’s charge. Nor does his bill to the refusal of the court to give his said special charge show that it was presented to the court before the argument was begun. If such was the case, the bill should show it. His bill to the refusal of the court to give this charge was not filed until November 18, 1913. The term of court at which appellant was tried adjourned August 21, 1913. Judging by the record in this and other matters, we conclude appellant did not request this charge before the court’s charge was read to the jury, and before the argument began. Under the circumstances we take it, the matter is not shown in such way as to authorize this court to review the question.

But even if we could, the evidence was so overwhelming that appellant did voluntarily make said written confession and understood it that the court’s refusal to give it is not of such grave importance as would authorize or require this court to reverse this case. The state proved positively and unequivocally by four witnesses, the district attorney, the sheriff, the court stenographer, and another witness, that appellant—after the proper warning, and the confession itself also so shows—voluntarily made and signed said written confession. That it was explained to him and read over to him several times before he signed it; that he understood English and, in addition, that an interpreter was had, and it was read and explained to him by the interpreter in Spanish, and that after all this he signed it. He admitted that he had made a statement to the district attorney, and that he signed it. He said in his testimony it was not read over to him and then he said it was read over to him. Taking all the testimony on the subject, it so overwhelmingly shows appellant made and understood it and voluntarily signed it as to make it unnecessary to give his special charge. Williams v. State, 60 Tex. Cr. R. 455, 132 S. W. 345. Besides, if appellant’s testimony raised the question at all, it was so weak, trivial, and light and its application so remote as that the court was not required to give his said special charge. Davis v. State, 28 Tex. App. 560, 13 S. W. 994; Bishop v. State, 43 Tex. 390; Cunningham v. State, 17 Tex. App. 89; Elam v. State, 16 Tex. App. 34; Leeper v. State, 27 Tex. App. 694, 11 S. W. 644; Treadway v. State, 144 S. W. 667, 668, and eases there cited. Other cases might also be cited, but we deem it unnecessary.

Appellant asked some other special charges. It is unnecessary to state or discuss them. Wherever any issue was raised which was necessary to be submitted, the court sufficiently did so in his main charge. The verdict, “We the Jury find the Defenda—Guilty of Man Slaughter and Assess his punishment at two years in the State Penitentiary. [Signed] D. W. Bradford Fourman,” was clearly sufficient, and the court did not err in not arresting the judgment as moved' by appellant. McGee v. State, 39 Tex. Cr. R. 190, 45 S. W. 709, and cases there cited, and many other cases too numerous to cite.

The Suspended Sentence Act of April 3, 1913, p. 262, was held void in Ex parte Marshall, 161 S. W. 112, and as has many times recently been held by this court, the court correctly told the jury to assess the penalty, instead of merely finding the appellant guilty, and the court then itself after-wards assessing the punishment. No reversible error is shown in this case and the judgment will be affirmed.


text:
    MULDREW v. STATE.
    (No. 2831.)
    (Court of Criminal Appeals of Texas.
    April 1, 1914.
    Rehearing Denied April 29, 1914.)
    1. Habeas Coepus (§ 50)—Time bob Application.
    Where accused was, on May 15th, indicted for murder and imprisoned under a capias issued upon the indictment, and on the same day his trial was set for June 2d, and a special venire ordered and issued, and subsequently, because of some defect in the. indictment, a new indictment was returned, the trial of which wás set for the same day as under the previous indictment, the court did not err in denying a writ of habeas corpus applied for on the morning of June 2d, after the venire had been summoned and were in attendance; no sufficient reason being shown why, if he desired a hearing on habeas corpus, he did not sooner apply therefor.
    [Ed. Note.—For other cases, see Habeas Corpus, Cent. Dig. § 48; Dec. Dig. § 50.]
    2. Criminal Law (§ 590)—Continuance — Grounds.
    Where, on a trial for homicide, after the denial of a writ of habeas corpus applied for on the day the case was set for trial, defendant moved for a continuance on the ground that various attorneys had been employed, but had not had time to investigate the facts, that a large number of the witnesses for the state were related to deceased, and had agreed not to tell, and would not tell, his attorneys what their testimony would be, that he had a right to bail, and that a hearing under habeas corpus was the only available method of finding out what such witnesses would testify, the court did not err in. denying a continuance. ■
    (Ed. ' Note. — For other cases, see Criminal Law,' Cent. Dig. §§ 1316, 1317; Dec. Dig. § 590.]
    3. CRIMINAL Law (§ 1001) — Suspension on Sentence — Procedure.
    Under Act Feb. 11, 1913 (Acts 33d Leg. c. 7), requiring a defendant seeking to take advantage of the suspended sentence law to file his sworn plea before the trial begins, such a plea was filed too late, and the court was not required to submit it to the jury, where it was filed after the motion for a continuance was overruled, and the selection of the jury had commenced.
    :[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2554-2559; Dec. Dig. § 1001.]
    4. Homicide (§ 169) — Evidence—Res Gest®.
    Accused, while attending a dance at a private house, stepped out on the gallery and urinated, and was seen by one of the ladies present, whose husband complained to him of his conduct. While subsequently dancing with deceased’s sister, he attempted to take liberties which she resented, refusing to continue dancing with him. He asked one or two other ladies to dance, and cursed them for their refusal, whereupon a dispute and scuffle ensued, in which deceased jerked accused out of the door, whereupon accused knocked deceased off a porch and then shot him. Held that, on a trial for homicide, testimony as to what occurred on the gallery and in connection with that matter and as to what occurred while accused was dancing with deceased’s sister was admissible, as it was a part of the transaction, and all of his misconduct was the cause of the others attempting to put him out of the room, and of the consequent killing.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 341-350; Dec. Dig. § 169.]
    5. Criminal Law (§ 954) — Appeal—Reservation oe Grounds on Review — Motion nor New Trial.
    A motion for a new trial complaining of the giving and refusing of instructions, which merely quoted them, without stating why the refused instructions should have been given, or pointing out any objection in the instructions objected to, was too general to require consideration.
    .[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2341, 2363-2367; Dec. Dig. § 954.]
    6. Criminal Law (§ 823) — Instructions — Cure by Other Instructions.
    On. a trial for homicide, an instruction that, if deceased struck accused, causing pain or bloodshed, and creating in accused’s mind sudden passion rendering him incapable- of cool reflection, and if he killed deceased under such influence of passion, to find him guilty of manslaughter, and that, if any act done by deceased or others acting with deceased or alone created a sudden passion rendering his mind incapable of cool reflection, to find him guilty of manslaughter, was not objectionable as requiring a conviction for manslaughter, though accused did not intend to kill, or acted in self-defense, where the court also charged that, if he, with a deadly weapon, or instrument reasonably calculated to produce death in a sudden passion, aroused by adequate cause, and not in defense of himself, shot or struck deceased thereby killing him, he was guilty of manslaughter; that, if an instrument by which a homicide was committed was one-not likely to produce death, it Was not to be presumed that death was designed, unless, from the manner of its use, such intention appeared; that, where a homicide occurred under the influence of sudden passion, by the use of means not in their nature calculated to produce death, the killer was not guilty of homicide, unless there was an intention to kill, but might be guilty of assault and battery, and, in addition, charged as to reasonable doubt, both as to the offense and as to the grade of offense, and fully and completely charged self-defense in every way raised by the evidence, though such instruction alone would probably be subject to such objections.
    (Ed. Note. — For other cases, see Criminal Law, Cent Dig. §§ 1992-1995, 3158; Dec. Dig. § 823.] 5
    Appeal from District Court, Milam County; J. C. Scott, Judge.
    Boyd Muldrew was convicted of manslaughter, and he appeals.
    Affirmed.
    Robert Lyles and Henderson, Kidd & Gillis, all of Cameron, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

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

   PRENDERGAST, P. J.

On a trial for murder appellant was convicted of manslaughter, and his punishment assessed at the lowest prescribed by law.

On Saturday night, May 10, 1913, appellant killed George Williams, and, as a part of the same transaction, and immediately thereafter, he also killed Curtis Bland. The killing occurred in Milam county, about 22 miles from Cameron, the county seat. The next day, Sunday, he went to Cameron, surrendered to the sheriff, and was placed in jail. On Monday following, complaint was duly filed against him before the justice court at Cameron, charging him with the murder of said Williams. The district court was then in session. On May 15th the justice entered an order admitting appellant to bail. It seems he did not then make bond. No reason is shown why he did not. On the same date the grand jury returned two bills of indictment against him, one charging him with the murder of said Williams, the other, of said Bland. Capiases in each case were duly issued and served on him, and he was then confined in jail under each capias. On the same day his trial for the murder of Williams was set for June 2, 1913, and a special venire of 100 men ordered and issued, returnable May 30th. Because of some defect in the first indictment against him, on May 21st, the grand jury preferred another in lieu of the first, charging the murder of said Williams. This case was set for trial for the same day as under the previous indictment, June 2,1913, and a special venire of 100 men ordered and issued, returnable May 30th. The latter venire was duly executed by the sheriff, returned within the time, showing that 93 out of the 100 men ordered summoned had been summoned and were in attendance in obedience thereto on June 2, 1913. The case against him for the murder of Bland had not been set for trial. Some time on the morning of June 2d, appellant presented his petition for writ of habeas corpus to Judge Scott, presiding judge, who, it seems, at once granted the application, and ordered the sheriff to produce him thereunder at 9:30 o'clock that morning. The district attorney at once made a motion, for various reasons, shown by it, asking the judge to deny said writ of habeas corpus and a hearing at'that time on it, and proceed to the trial of the case before the jury. The court heard the matter and the evidence thereabouts, and on the same day rescinded his order granting the writ of habeas corpus and hearing thereunder and directing that the writ, or application for said habeas corpus, would be heard at some later date, as early as the business of the court would permit. Thereupon appellant duly excepted, and asked till next morning to file his application for a continuance, which was granted. On the next morning appellant made a motion to continue, claiming substantially, in effect, that, while various attorneys had been at once employed by appellant, some of them had been engaged in the trial of cases in said court, and did not have much time to investigate the facts of the case; that a large number of the witnesses for the state were the kinsfolk of the deceased, and that they had agreed, among themselves, not to tell, and would not tell, appellant’s attorneys what their testimony would be, and that he had a right to bail and to be on bail while this case was being tried; and that the hearing, under the habeas corpus, was practically their only available method of finding out what the testimony of the said state’s witnesses would be.

Under the circumstances and facts of this case, the court did not err in declining to hear the ease on habeas corpus, when an application to him for that purpose was first made on the very day the case was set for trial, and a special venire had been duly ordered and were in attendance. No sufficient reason whatever is shown why, if appellant desired a hearing on habeas corpus, he did not sooner apply therefor. There was ample time for him to have done so and had a hearing if it was so important to him that he should. This case does not come within the rule in the case of Streight v. State, 62 Tex. Cr. R. 471, 138 S. W. 742. There the application for habeas corpus had been applied for some time before the trial, and as soon as it could reasonably have been done after indictment found, and no sufficient or good reason was shown why the habeas corpus hearing in that case was not had before the day the case was set for trial. In that case we said: “Of course, the court should not permit continuances to be secured by merely filing an application on the day set for trial of a case, or so short a time before that day as to render it impossible to hear it before the day set for the trial.” What we then said particularly applies to this case. The court’s action in declining at the time to hear the case on habeas corpus and thereby continue the ease was correct. Neither did the court err in not continuing it on appellant’s said motion. Creswell v. State, 14 Tex. App. 1.

When appellant’s motion for a continuance was overruled on the morning of June 3d, the cause proceeded to trial, and the jury was duly selected and impaneled. After the case had thus gone to trial, some time the next day, and before the indictment was read, and appellant entered his plea of not guilty, he filed a sworn plea seeking to have his sentence suspended in the event he was convicted of manslaughter. This clearly was filed too late, and the court was not required to submit that plea to the jury for a finding. The statute itself (Act Feb. 11, 1913, p. 8) expressly requires that, when appellant seeks to take advantage of the suspended sentence law he shall file his sworn plea, and must file it “before the trial begins” in order to avail himself of it. It is too late if he waits till after the trial begins before he files such plea. Williamson v. State, 163 S. W. 435. See, also, Roberts v. State, 158 S. W. 1003; Baker v. State, 158 S. W. 998; Potter v. State, 159 S. W. 846; Monroe v. State, 157 S. W. 155; King v. State, 162 S. W. 890. Without question, the trial of this case began as soon as the court overruled appellant’s motion for continuance and forced him to trial and the selection of the jury began. C. C. P. arts. 654, 673, 698.

It is unnecessary to give an extended statement of the evidence in this case, or of the testimony of the respective witnesses. In some matters the testimony was conflicting. Taking it all, it justified the jury to believe, and was amply sufficient to show, that there was a little neighborhood dance at the house of Mr. Farlett, a relative of the deceased, on said Saturday night, May 10, 1913: Appellant did not live in that neighborhood, but quite a distance away in another neighborhood, and was not invited to said party by anybody directly connected therewith. He heard of the party while he was at Rosebud, and left Rosebud in the night, went to his home, and after, or about 9 o’clock that night, started to the party, reaching it about 11 o’clock, and after the dance had ended and part of the guests had gone home. Before leaving Rosebud, he proceeded to provide himself with a bottle of whisky, and, when he got to his home, just before starting to the party, he further proceeded to load up with a large six-shooter, and took with him at the same time said bottle of whisky. While going from his home to the party, he proceeded further to “tank up” on the whis-ky. He was a stranger practically to Mr. Farlett and the whole company dancing. There were only three or four ladies in the whole crowd who danced at all — perhaps not esceeding three. There were very few ladies at the party. All three of these ladies who danced were the sisters of the deceased. It seems that the party “broke up” at first because the musicians were not paid what they thought was agreed to. Appellant induced Mr. Farlett to let the dance be renewed, he. (appellant) paying the musicians what they claimed, $1.15, and appellant stated to Mr. Farlett he had come a long distance to the dance, and, under the circumstances, desired to dance. Mr. Farlett agreed to this. The room was thereupon cleared out, some of the guests, among them one of appellant’s sisters, who had returned home, was sent for, and she returned to the dance. After dancing awhile, appellant, it seems, desired to urinate, and proceeded to step out on the gallery of the very small house and urinated on the gallery very near the door of the room where the dancing occurred. While so urinating, Mr. Farlett took Mrs. Knouse, one of the deceased’s sisters, and a little girl out on this gallery to get a drink of water, the drinking water being kept out there. When they stepped out on the gallery, Mr. Farlett, and, it seems, Mrs. Knouse, too, saw appellant urinating on the gallery. She and the little girl at once returned in the room, and Mr. Farlett complained to a'ppellant of his conduct. Appellant went back into the house, and the dance was resumed, and Miss Bettie, another sister of deceased, danced with him. During the dance with her, he attempted to take liberties with her person, which she resented, and, because of his conduct, she refused longer to dance with him, and took her seat. He tried to force Miss Addie Farlett, the sister of the host, and also a kinswoman of the deceased, to dance with him. She declined, telling him she didn’t dance at all, and hadn’t danced that night with any other. He took hold of her arm and tried to pull her out, and she had to hold to the door-facing to prevent his pulling her out on the floor, and, when he did not succeed, he said to her: “God damn you, there ain’t a damned decent girl in the house.” Appellant then tried to get another sister of the deceased to dance with him. Miss Bettie Williams testified: “I heard him when he asked my sister to dance with him. He asked her to dance with him, and she told him that she had four partners, and he says, ‘You have a hell of a lot of partners, take your damn partners and go to hell with them;’ and then Mr. Farlett asked him please not to be cursing the girls any more; ■ and then Mr. Muldrew said he came to him like a white man and got him to let him dance, and he had paid $1.15, and he would do as he damned please; and so then my brother-in-law, Mr. Knouse, told him, if he had paid $1.15,' to go ahead and dance, and not be cursing the girls. Mr. Muldrew then says, ‘You damn son of a bitch, you, if you take it up, just follow me out,’ and Mr. Knouse rose up, and then my sister she stepped in — my sister was his wife — and she stepped in between them, and Mr. Muldrew hit Mr. Knouse over her shoulder, and then hit her twice, and then hit my grandma (an old lady about 90 years old) and knocked her under the table, and my brother George was standing at the mantelboard, and shoved Mr. Muldrew towards the door. My brother had not come up and said or done anything before my grandmother was struck, and then all the crowd rushed in that corner where they were having the scuffle, and then my brother stepped around the crowd, and Mr. Muldrew caught hold of him on the left arm and jerked him out of the door, and they went out of the door together, and I followed them outdoors, and I saw Mr. Muldrew knock my brother off of the porch, and then he jumped down and shot him. I could not tell what he hit him with when he knocked him off of the porch. My brother fell right at the corner of the porch, and Mr. Muldrew jumped off there at the edge where he knocked him off at.” Other witnesses testified substantially as did Miss Bettie Williams. The witnesses, even the doctor, differed as to whether any of appellant’s shots from his pistol at deceased after he knocked him down struck deceased. Some said one of the wounds on deceased’s head was caused by one of the balls striking a glancing shot. Others that all the wounds on deceased’s head and face were caused by some blunt instrument. It was reasonably shown none of the balls entered deceased’s body. The deceased never regained consciousness after being at least knocked in the head, if not shot hy appellant. Appellant shot more than once at the deceased after he had knocked him in the head and knocked him down, and retreated to his buggy hitched immediately in front of the house, and, while getting in, or just after getting in, the young man Bland, whom appellant killed, and who was an associate of the deceased, and it seems lived with the deceased’s family, at the time ran out to intercept appellant, and thereupon appellant proceeded to shoot and kill him instantly.

Appellant objected to the testimony of Mr. Farlett and several others about him urinating and what occurred thereabouts, and to the testimony of Miss Bettie Williams to the effect that, while she was dancing with appellant, he tried to take advantage of her, as shown above. There is no question but that all of this testimony was admissible in this case. It was a part of the transaction, and all of appellant’s said misconduct together was unquestionably the cause of the deceased and others attempting to put him out of the room and appellant killing deceased. Stanley v. State, 44 S. W. 519; Elmore v. State, 78 S. W. 520; Moore v. State, 31 Tex. Cr. R. 234, 20 S. W. 563; Washington v. State, 19 Tex. App. 521, 53 Am. Rep. 387; Cox v. State, 8 Tex. App. 254, 34 Am. Rep. 746; Means v. State, 10 Tex. App. 16, 38 Am. Rep. 640.

Appellant requested several special •charges, which were refused. He also' excepted, in his motion for new trial, to some paragraphs of court’s charge. The only way he attempts to raise these (questions is by quoting the requested charges and quoting the paragraphs objected to, and not stating in any way why these special charges should be given, nor pointing out any objection to •the portions of the court’s charge objected to. It has been so long and well settled by the uniform decisions of this court that these matters only so raised and presented are--too general to authorize or require this court to consider them that we deem it unnecessary to cite the authorities. But see Byrd v. State, 151 S. W. 1068, and cases therein cited; Ryan v. State, 142 S. W. 878; Berg v. State, 142 S. W. 884; Berry v. State, 163 S. W. 964.

However, appellant does pick out one paragraph of the court’s charge on manslaughter — (f), hereafter quoted — and complains that by it the court told the jury to convict appellant of manslaughter, regardless of whether or not he intended to kill the deceased, or whether he acted in self-defense. If this paragraph was taken by itself, it probably would be subject to appellant’s objections. But it is elementary in this state that it is improper to single out and criticise separate paragraphs of a charge; that the whole must be taken into consideration; that in no case of murder or manslaughter can the charge of tbe court be given in one paragraph alone; it must necessarily and properly be given in many paragraphs, and this is universally the case. The court, in submitting manslaughter, correctly, and in accordance with the statute, told the jury what was manslaughter in every way applicable to this case, and charged:

“(e) If you believe from the evidence, beyond á reasonable doubt, that the defendant, with a deadly weapon, or instrument reasonably calculated and likely to produce death, by the mode and manner of its use, in a sudden passion aroused by adequate cause, as the same is herein explained, and not in defense of himself against an unlawful attack, real or apparent, reasonably producing a rational fear or expectation of death or serious bodily injury, did shoot with a pistol, and did strike, hit, beat, and wound with a pistol, and did strike, hit, beat, and wound with some blunt instrument, all or any of which said weapons or instruments were reasonably calculated and likely to produce death by the mode and manner of their use, and did thereby kill the said George Williams, as charged in the indictment, you will find the defendant guilty of manslaughter, and assess his punishment in the state penitentiary for any term of not less than two' nor more than five years. 1 •
“ (f) If you believe from the evidence that the deceased struck the defendant a blow or blows which caused him pain or bloodshed, and the said blow or blows created in the mind of the defendant sudden passion which rendered his mind incapable of cool reflection, and that he killed deceased under such influence of passion, you will find him guilty of manslaughter. Or, if you believe from the evidence that, from any act or acts done by the deceased or by any others acting with deceased or acting alone, either in the house, on the gallery, or in the yard prior to or at the time of the killing, and that said act or acts, or any of them, if there were any such, created in the mind of the defendant sudden passion which rendered his mind incapable of cool reflection, you will find him guilty of manslaughter. And in passing upon the condition of the defendant’s mind at the time of the killing, you may consider the evidence of such blow or blows, if any, heretofore submitted to you.
“IV.
“(a) The instrument or means by which a homicide is committed are to be taken into consideration in judging of the intent of the party offending; if the instrument be one not likely to produce death, it is not to be presumed that death was designed, unless from the manner in which it was used such intention evidently appears. So, in this case, if you believe from the evidence that the instrument or instruments used were not likely to produce death in the mode and manner of their use, then you are instructed that you could not presume that death was designed, unless you believe from the evidence from the manner in which said instruments were used such intention evidently appears.
“(b) Where a homicide occurs under the influence of sudden passion, but by the use of means not in their nature calculated to produce death, the person killing is not deemed guilty of homicide, unless it appears that there was an intention to kill, but the party from whose acts death resulted may be prosecuted for and convicted of any grade of assault' and battery. So, in this case, if you believe from the evidence that .the defendant killed the deceased, but you further believe that the means as used were not, in their nature, calculated to produce death, then you will find the defendant not guilty of homicide, unless you believe from the evidence there was an intention on the part of defendant to kill; but you could, under this submission, find the defendant guilty of an aggravated assault and battery, and assess his punishment by a fine of not less than $25 nor more than 81,000, or imprisonment in the county jail not less than one month nor more than two years, or by both such fine and imprisonment.”

’ In addition to this, the court charged the reasonable doubt between murder in each degree and manslaughter, and also between manslaughter and aggravated assault, and told them that, if they had a reasonable doubt as to whether the offense, if any, was aggravated assault and battery, to give the defendant the benefit of the doubt, and find him guilty of no higher offense than aggravated assault and battery. He then gave a charge on reasonable doubt as applicable to the whole case, and fully and completely charged self-defense in favor of appellant in évery way raised applicable to the evidence.

Under the circumstances of this case, and taking the charge of the court as a whole, it is our opinion that the criticism of the paragraph of the court’s charge by appellant does not authorize or require this court to reverse. O. C. P. art. 743, before the recent amendment thereof; Childs v. State, 35 Tex. Cr. R. 573, 34 S. W. 939; McGrath v. State, 35 Tex. Cr. R. 426, 34 S. W. 127, 941; Smith v. State, 48 Tex. Cr. R. 250, 89 S. W. 817; Foster v. State, 51 Tex. Cr, R. 77, 100 S. W. 1159. And see, also, Puryear v. State, 56 Tex. Cr. R. 231, 118 S. W. 1042; Davis v. State, 57 Tex. Cr. R. 548, 124 S. W. 104; Pratt v. State, 59 Tex. Cr. R. 172, 127 S. W. 827; Pratt v. State, 59 Tex. Cr. R. 640, 129 S. W. 364.

As stated above, appellant’s penalty was assessed at the lowest prescribed by law.

The judgment is affirmed.


author: HARPER, J.

text:
    MORAN v. STATE.
    (No. 3059.)
    (Court of Criminal Appeals of Texas.
    April 15, 1914.)
    1. Criminal Law (§ 519,) — Evidence—Concessions — Statements as to Stolen Property.
    Under Code Cr. Proc. 1911, art. 810, providing that the confession of a defendant shall not be used if made while he was in jail, unless made in his voluntary statement before an examining court, or made in writing- and signed by him, or unless, in connection therewith, he makes statements of facts, found to be true, which conduce to establish his guilt, such as the finding of secreted or stolen property, where persons arrested for stealing a horse and buggy told the owner where to find the buggy, and it was found at the place stated, the statement was admissible, though made while in jail and not in writing.
    ![Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1163-1174; Dee. Dig. § 519.]
    2. Criminal Law (§ 418) — Evidence—Statements of Conspirator.
    On a trial for stealing a horse and buggy, where it appeared that accused and another traveled together in the buggy, were together when it was sold, that accused, at the time of the sale, stated that it was not stolen, and that they then went together to the place where they were arrested, while in possession of the stolen horse, and that while in jail they together talked to the owner, the statement of the other in accused’s presence, and acquiesced in by him by silence at least, as to where .the buggy would be found was admissible against accused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 968-972; Dec. Dig. § 418.]
    3; Larceny (§ 78) — Instructions—Defense.
    On a trial for stealing a horse and buggy, accused’s defense that he was not a party to the original theft was fairly submitted by an instruction that if N. left accused and went off and himself hired or took the property without the knowledge or consent of the owner, and if accused was not present, or if the jury had a reasonable doubt as to whether this was true, to find accused not guilty.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. § 182; Dec. Dig. § 78.]
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge;
    Bart Moran was convicted of theft, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen.; for the State.

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

   HARPER, J.

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

On the night of the 20th of April- J. M. Harkey had his horse and buggy stolen from him. Appellant and one John Nelson were found in possession of the horse in Ardmore, Okl., and were arrested and jailed. Mr. Harkey went to Ardmore, identified his horse, and talked to appellant and Nelson while in jail, and they told him where he would find his buggy; that it had been sold to Mr. Johnson at Denison, a newspaper man. He found the stolen buggy at the place stated by either appellant or Nelson. Mr. Harkey was not certain which one told him, but says they were both present engaged in the conversation, and he then and there was told where he would find his buggy, and they admitted they had taken it. This conversation in the jail was objected to by appellant on the ground that appellant was in jail; that the confession was not in writing- and was not a res gestae statement, and witness was not certain that appellant made the statement testified, as it may have been made by John Nelson, and appellant would not be bound by statements made by Nelson, even if the statement was admissible against Nelson. The stolen buggy having been found in pursuance of the confession or statement, the fact they were in jail and the confession not in writing would not render it inadmissible. Article 810, C. O. P., provides that if, in connection with such confession, he makes a statement of facts that are found to be true, which conduces to establish his guilt, such as the finding of stolen property, the confession is admissible, and in this instance the stolen buggy was found solely by reason of the statement or confession admitted in evidence. And it would be immaterial whether the statement was made by Nelson or appellant; they left Dallas together in the stolen buggy, were together in Denison when the stolen buggy was sold, and appellant stated, at the time the sale was made to Mr. Johnson,-that it was not stolen property; they went from Denison to Ardmore together, and were arrested in charge of the stolen horse; they together talked to Mr. I-Iarkey in jail, and each would be bound by the statements made by éach of them in this conversation in the presence of each other, which .they each acquiesced in,' by silence at least.

The defendant testified to facts tending to show that he was not a party to the original theft, and the court fairly submitted this issue to the jury, instructing them: “You are further instructed that if one John Nelson left this defendant and went off and himself hired or took the property without the knowledge or consent.of the owner, and this defendant was not present with him at the time he took it, then you will find the defendant not guilty, or, if you have a reasonable doubt as to whether this is true, you will give the defendant the benefit of such doubt and find him not guilty.”

This submitted affirmatively the only defensive issue made by appellant’s testimony; and the judgment is affirmed.


author: PRENDERGAST, P., J.

text:
    CREACY v. STATE.
    (No. 2945.)
    (Court of Criminal Appeals of Texas.
    April 15, 1914.)
    1. Criminal Law (§ 595)—Continuance—Absence of Witness.
    It was error to deny a continuance of a trial for seduction because of the absence of a witness by whom accused expected to prove that he had sexual intercourse with the prosecutrix before and after the alleged offense, though the state introduced evidence that the witness did not have intercourse with the prosecutrix at any time, and would not swear to any act of intercourse before a time long subsequent to the offense, it appearing on the trial from the testimony of the prosecutrix and others that he at least had the opportunity to commit the act.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1311, 1323-1327; Dec. Dig. § 595.] '
    2. Seduction (§ 40) — Evidence — Admissibility.
    On a trial for seduction, letters written by the prosecutrix long after the offense, and of Tittle importance, were not admissible.
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. §§ 72, 76, 79; Dec. Dig. § 40.]
    Appeal from District Court, Hopkins County; Wm. Pierson, Judge.
    Jesse Creacy was convicted of seduction, and he appeals.
    Reversed and remanded.
    D. Thornton, of Sulphur Springs, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, P., J.

Appellant was convicted of seduction. He was tried very soon after the indictment was found. He made a motion for a continuance on account of the absence of his witness Ed Sutton. We think the diligence .was amply sufficient. He swore in his motion for continuance that he expected to prove by said witness that he, the witness, associated with the prosecutrix in a familiar way, and on or about the night of January 28, 1911, and a number of times before and after that date, he had sexual intercourse with her. In hearing appellant’s motion for new trial on said ground, the state contested what said witness would swear, and introduced evidence tending rather strongly to show that the witness would not swear that he had intercourse with said girl until June, 1912, and only twice thereafter. The state also introduced evidence tending, with more or less force, to show that said witness did not have intercourse with the girl at said times, even in June, 1912, and subsequently. The prosecutrix testified that the first act of intercourse with appellant was in January, 1911. By taking the testimony as a whole, without reciting it and without discussing it, we believe the appellant ought to have had an opportunity to have his witness Sutton present and testify in the case. The prosecutrix and others testified to such a state of facts as would show that the absent witness, at least, had the opportunity, if he did not commit the act.

Appellant vigorously contests the sufficiency of the evidence and of the' corroboration of the prosecutrix. As the case must be reversed, we do not discuss these questions. It may be that on another trial, the state can introduce other facts and circumstances and other evidence to corroborate the prosecu-trix.

We think the letters of the prosecutrix proposed to be introduced were inadmissible. They were so long after the alleged offense and of not sufficient importance to justify their introduction in evidence.

There are no other questions raised in such a way that we can consider them. For the error in refusing a continuance, or rather, in not granting appellant’s motion for new trial because of the refusal of a continuance, the judgment is reversed and the cause remanded.


author: PBENDEBGAST, P. J.

text:
    BRAGG v. STATE.
    (No. 2963.)
    (Court of Criminal Appeals of Texas.
    April 15, 1914.
    Rehearing Denied May 6, 1914.)
    1. Criminal Law (§ 829*) — Instructions Covered by Other Instructions.
    In a prosecution of an accomplice to swindling, it was not error for the court to fail to charge specially that, in order to convict, the evidence must be sufficient to convict the principal as principal, where the main charge required them to believe beyond a reasonable doubt everything essential to show the principal’s guilt.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.*]

      2. CRIMINAL Law (§ 59) — Parties to Offenses—Accomplices.
    , In order to make one guilty as an accomplice, it is not necessary that he and the principal should have entered into an agreement to commit the offense, but only that, before the act was done, he advised, commanded, or encouraged the principal to commit the offense.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 71, 73, 74, 76-81; Dec. Dig. § 59.]
    3. Criminal Law (§ 1090) — Necessity, of Bill of Exceptions.
    The appellate court cannot review an exception when it is not shown by the bill of exceptions', but 'only in the motion for a new trial.
    [Ed. Note.—Eor other cases, see Criminal Law, Cent. Dig. §§ 2653,2789,2803-2822,2S25-2827, 2928, 2948, 3204; Dec. Dig. § 1090.]
    4. Criminal Law (§ 1208) — Accomplice — Punishment.
    Pen. Code 1911, art. 84, providing that if the accomplice stands in the relation of parent, etc., to the principal offender, he shall, in all such cases, receive the highest punishment affixed to the offense, was not applicable where the indictment did not allege that.the defendant stood in the relation of parent to the principal offender.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 3281-3287, 3289-3295; Dec. Dig. § 1208.]
    5. Criminal Law (§ 1165)—Appeai>—Harm-less Error.
    In the prosecution of an accomplice for swindling, defendant could not complain of the trial court’s failure to authorize a higher penalty, since such, if- error, was clearly in defendant’s favor.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 3085, 3086, 3088, 3089; Dec. Dig. § 1165.]
    Appeal from District Court, Titus County; H. F. O’Neal, Judge.
    E. W. Bragg was convicted of being an accomplice to a swindling scheme, and he appeals.
    Affirmed.
    S. M. Long, of Mt. Vernon, and W. E. Ponder and Bolston & Bolston, all of Mt. Pleasant, 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

   PBENDEBGAST, P. J.

Appellant was convicted as an accomplice to swindling, and his punishment assessed at two years in the penitentiary—the lowest prescribed by law.

The evidence was amply sufficient to sustain the conviction. The case was tried in October, 1913. The appellant complains in some particulars of the court’s charge. His first is,' in effect, that the court failed to charge specially that in order to convict him as an accomplice the evidence must be sufficient to convict the principal as principal. It must be borne in mind that it was the accomplice and not the principal on trial. The court in his charge to which there is no complaint first stated substantially but succinctly the allegations in the indictment, then told the jury all of the requisites necessary for the state to establish before they were authorized to convict. Following this, in submitting the case to the jury for a finding, he required the jury to believe beyond a reasonable doubt' everything necessary and proper under the law and the indictment for them to believe, before they could convict, and, if they found all of these things beyond a reasonable doubt, then to convict. In this charge not only did he require them to believe beyond a reasonable doubt everything essential to show the principal’s guilt as principal, but also the appellant’s as an accomplice.

The court, in his charge, required the jury to believe, beyond a reasonable doubt, as the statute requires that in order to convict him as an accomplice they must believe that he did unlawfully and willfully and fraudulently advise, command, and encourage the principal to do and commit said swindling, and that he was not personally present when the swindling, if any, was committed, before they could convict him. It is not the law and was not necessary for the court to charge, as contended by appellant, that in order to make him guilty as an accomplice the jury must believe beyond a reasonable doubt that he and the principal entered into an agreement to commit the offense of swindling. The law and the statute does not require that he shall enter into any such agreement, but it only requires, in order to make him an accomplice, that before the act is done he advised, commanded, or encouraged the principal to commit the offense of swindling.

Appellant complains by his motion for new trial only that the court had the verdict of the jury corrected before he would receive it. Nothing is shown by any bill of exception on this subject, and we cannot review such matter stated only in the motion for new trial. It must be shown by bill of exception.

As stated above, this cause was tried in October, 1913—some time after the Act of April 5, 1913, p. 278, amending articles 735, 737, and 743, and adding 737a, were in force. The court correctly told the jury that if they found appellant guilty .and the value of the property of which the complaining witness had' been swindled was worth more than $50 to assess his punishment in the penitentiary at any term of years not less than two nor more than ten. This is the penalty prescribed by law. Appellant in no way complained of this at or before the trial. For the first time in his motion for new trial he complained that the court should have given the punishment prescribed by article 84, Pen. Code 1911. That article is: “If the accomplice stands in the relation of parent, master, guardian or husband to the principal offender, he shall, in all such cases, receive the highest punishment affixed to the offense, and the same may, in felonies less than capital, be increased by the jury to double the highest penalty which would be suffered in ordinary cases.” That article of the statute is inapplicable to the offense alleged in this ease. The indictment did not allege that the appellant stood in the 'relation of parent to the principal offender. This it is necessary to állége in the indictment before this article 'of' the statute is applicable. Section 107, White’s Ann. P. C.; Wilson’s Form No. 739 (4th Ed.). Besides this, under the amended articles of the Procedure by said Act of April 5,1913, it was too late to first make this complaint of the court’s charge after the trial was concluded. Barnett v. State, 42 Tex. Cr. R. 302, 62 S. W. 765; Manning v. State, 46 Tex. Cr. R. 326, 81 S. W. 957, 3 Ann. Cas. 867, and cases cited; Knight v. State, 64 Tex. Cr. R. 569, 570, 578, 579, 144 S. W. 967, and cases therein cited; Bills v. State, 55 Tex. Cr. R. 543, 117 S. W. 835; Williams v. State, 53 Tex. Cr. R. 399, 110 S. W. 63; Robbins v. State, 57 Tex. Cr. R. 8, 121 S. W. 504; Reyes v. State, 51 Tex. Cr. R. 420, 102 S. W. 421; Bell v. State, 31 Tex. Cr. R. 521, 21 S. W. 259; Work v. State, 3 Tex. App. 233; Gantt v. State, 105 S. W. 800.

Again, the court’s failure to authorize the higher penalty, even if said article 84, P. O. 1911, had been applicable, was clearly in appellant’s favor and not against him, and he cannot justly complain on that account. Jones v. State, 63 Tex. Cr. R. 413, 141 S. W. 953, and authorities there cited; Coker v. State, 160 S. W. 368.

As stated above, the evidence is amply sufficient to sustain the verdict. In fact, it occurs to us of the evidence in this case, as said by Judge Hurt of the evidence in Graham v. State, 28 Tex. App. 11, 11 S. W. 782, 19 Am. St. Rep. 809, “no honest jury under such proof could do otherwise than convict.”

The judgment is affirmed.


text:
    COLEMAN v. STATE.
    (No. 3085.)
    (Court of Criminal Appeals of Texas.
    April 8, 1914.
    Rehearing Denied May 6, 1914.)
    Intoxicating Liquors (§ 146) — Offenses— Sale.
    Defendant, who, at the request of one who had ordered whisky, made affidavit that it was his and was not intended for any illegal purpose, paying the notary with money furnished by the party ordering the whisky, took the affidavit to the express office, signed for and received the liquor and delivered it to the party who had ordered it, was guilty of a sale in violation of the misdemeanor prohibition law.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 159, 160, 163; Dec. Dig. § 146.]
    Appeal from Nacogdoches County Court; Geo. F. Ingraham, Judge.
    Calvin Coleman was convicted of a sale in violation of the prohibition law, and he appeals.
    Affirmed.
    King & Seale, of Nacogdoches, 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

   PRENDERGAST, P. J.

Misdemeanor prohibition has been in effect in Nacogdoches county since May, 1906. In November, 1913, Edgar Moore, with the knowledge and consent of appellant, ordered a case of whisky from a whisky dealer in Louisiana to be sent by express to Nacogdoches. The liquor dealer so shipped the whisky. When the whisky arrived in Nacogdoches, Moore was informed thereof. He and two others then made up the money, $12.75, for the whisky and paid it to the liquor dealer’s collecting agent in Nacogdoches. Appellant, at his instance, then went to' the express agent to procure the liquor. The express agent refused to deliver it to him unless and until he would make an affidavit that it was his whisky and that it was not intended for any illegal purpose. Moore and others then furnished him 25 cents for swearing to the affidavit. He went before a notary, made affidavit to the effect as above stated, paid the notary the 25 cents for swearing him thereto, took the affidavit, went to the express company, delivered the affidavit to the agent, signed for the whisky in the books of the express company, and received the whisky from the agent. He thereupon deliverd it to Jim Johnson for Moore and the others, -and it was so delivered to them.

The. case was tried before the court without a jury. The court adjudged him guilty and assessed the lowest penalty. In. our opinion the facts of this case bring it within the principles laid down and held by this court to constitute a sale in violation of the prohibition law, under the cases of Ashley v. State, 46 Tex. Cr. R. 471, 80 S. W. 1015; Treadaway v. State, 42 Tex. Cr. R. 466, 62 S. W. 574; Dunn v. State, 48 Tex. Cr. R. 107, 86 S. W. 326, 22 Am. St. Rep. 734; Parks v. State, 50 Tex. Cr. R. 165, 96 S. W. 329; McElroy v. State, 50 Tex. Cr. R. 14, 95 S. W. 541; Bills v. State (Cr. App.) 64 S. W. 1047; Stokes v. State, 49 Tex. Cr. R. 99, 90 S. W. 179; Walker v. State, 52 Tex. Cr. R. 293, 106 S. W. 376; Cantell v. State, 47 Tex. Cr. R. 522, 85 S. W. 18; Hillard v. State, 48 Tex. Cr. R. 314, 87 S. W. 821; Sliger v. State, 48 Tex. Cr. R. 341, 88 S. W. 243; Jackson v. State, 49 Tex. Cr. R. 248, 91 S. W. 574, and other cases.

The judgment is therefore affirmed.


text:
    HUNTER v. STATE.
    (No. 2978.)
    (Court of Criminal Appeals of Texas.
    April 8, 1914.)
    1. Weapons (§ 17*) — Defenses—Burden or PROOF.
    The burden was upon one charged with unlawfully carrying a pistol to establish the defense that he was at the time a civil officer engaged in the discharge of his duty, and had a reasonable fear of an unlawful attack upon his person, and that the danger was so imminent as not to permit the arrest of the threatening party, which circumstances Penal Code 1911, art. 476, provides shall relieve from liability for carrying a pistol, especially in view of article 52, requiring accused to establish the facts relied on to excuse or justify the prohibited act.
    [Ed. Note. — For other cases, see Weapons, Cent. Dig. §§ 20, 22-33; Dec. Dig. § 17.]
    2. Criminal Law (§ 829) — Appeal—Harmless Errob — Instruction.
    Any error in refusing requested charges by accused, or in particular expressions in the charges given, was harmless, where the charges given were substantially correct upon every issue.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.]
    8. Criminal Law (§ 1091) — Appeal—Bill or Exceptions — Improper Argument — Sufficiency.
    A bill of exceptions to improper argument by the district attorney was insufficient, where it did not state the objections made to the argument, or the circumstances under which it was made.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.]
    4. Indictment and Information (§ 72) — Disjunctive Allegations.
    The indictment, in a prosecution for unlawfully carrying a pistol, which alleged that accused did unlawfully carry a pistol on “or” about his person was fatally defective for using the disjunctive.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 195-199; Dec. Dig. § 72.] .
    Prendergast, P. J., dissenting in part.
    Appeal from Terry County Court; Geo. W. Neill, Judge.
    T. F. Hunter was convicted of unlawfully carrying a pistol, and appeals.
    Reversed, and case dismissed.
    John Davenport, of Wichita Falls, and T. F. Hunter, of Wichita Falls, 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 appeals from a conviction for carrying a pistol, with a fine of $100 assessed — the lowest prescribed by law.

By the uncontradicted evidence for the state appellant is shown to have carried a pistol at the time and place charged in the indictment. This is not disputed. In addition, the appellant himself testified and swore that he carried the pistol at the time and place alleged in the indictment. So that, so far as this casé was concerned, it was unquestionably shown and not contested that appellant carried the pistol at the time and place alleged. His defense was that he was not guilty of violating the law at the time because, first, he was a civil officer engaged in the discharge of his duty, and, second, that he had reasonable ground for fearing an unlawful attack upon his person, and the danger was so imminent and threatening as not to admit the arrest of the party about to make such an attack upon legal process.

The court substantially, if not literally, told the jury, in accordance with the stat7 ute (article 475, P. O.), the offense; and also told them, as shown by article 476, P. C., that the preceding article did not apply in either, of the two events claimed by appellant as his defense. The charge of the court was not very artistically drawn; but it substantially and fully enough submitted these questions to the jury for a finding. The jury found all of them against appellant, and were justified by the evidence in so finding.

Under the statute and the many decisions of this court, the court’s charge, in effect, that the burden was upon appellant to establish his defense was correct. Besides, the article of the statute above noted, pertaining to this offense (art. 52, P. C.), prescribes: “On the trial of any criminal action, when the facts have been proved which constitute the offense, it devolves upon the accused to establish the facts or circumstances on which he relies to excuse or justify the prohibited act or omission.” Lewis v. State, 7 Tex. App. 567; Stilly v. State, 27 Tex. App. 445, 11 S. W. 458, 11 Am. St. Rep. 201; Skeen v. State, 34 Tex. Cr. R. 308, 30 S. W. 554; Blackwell v. State, 34 Tex. Cr. R. 476, 31 S. W. 380, and other cases unnecessary to cite.

Appellant has several complaints to different expressions of the court’s charge, and to the refusal of the court to give his special charges asked. Even if any of these matters were so raised as to authorize or require this court to pass thereon, they present no reversible error, because the charge of the court, as given, including one of appellant’s special charges given, presents substantially correctly every issue raised and necessary to be decided. ■

Appellant has one bill of exceptions to the argument made by the district attorney to the jury. The bill states that he excepted to the argument “and made various objections to the same.” What these objections were are not .stated nor shown in the bill. Nor are the circumstances under which, the claimed objectionable argument was made stated. No special charge is shown in the record to have been requested by appellant and refused for the jury to disregard the argument. ' The bill itself is insufficient to properly present the question, and- it shows no error. James v. State, 63 Tex. Cr. R. 75, 138 S. W. 612; and Conger v. State, 63 Tex. Cr. R. 312, 140 S. W. 1112, and authorities there cited.

The most material, question in this case is appellant’s claim that the indictment charging him with this offense is fatally defective. After the necessary preliminary .allegations therein, it avers that appellant>in said county on January 29, 1913, “did unlawfully carry on or about his person a pistol;” appellant claiming that the averment that he carried "on or about” is fatally defective, that the indictment should have charged that he carried “on and about.” The Assistant Attorney General also contends as does appellant. Appellant cites Canterberry v. State, 44 S. W. 522; Lewellen v. State, 54 Tex. Cr. R. 640, 114 S. W. 1179; Harris v. State, 58 Tex. Cr. R. 523, 126 S. W. 890. Each of these cases sustain his contention. There may be others to the same effect. The question is: Are they right, and shall they be followed?

It was unquestionably the common-law rule that such an allegation — “on or about” —was bad, and an indictment or complaint and information so charging insufficient. Many decisions of this court prior to 1881 correctly so stated and held. Some of these are cited and noted in the three decisions above cited and relied upon by appellant. But by the act of March 26, 1881, c. 57, p. 60, our Legislature expressly enacted the reverse of this rule. Said act is now articles 460 to 476, inclusive, in our Code of Civil Procedure. The Legislature unquestionably by that act intended that the old rule of the common law, as shown by said articles, should no longer be the law of this state, but that act, where it changed such rule, should be the law of this state. There can be no question that the Legislature had the power and the authority to so enact, and this court,- and no other, can say it did not. The Legislatures of our state enact laws— not this court This court can neither properly enact a law nor repeal one. It is, should, and must be bound by the Acts of the Legislature when constitutionally enacted. As said by this court, through Judge Willson, in Leeper v. State, 29 Tex. App. 72, 14 S. W. 400, so we here say: “We regard it as the imperative duty of this court, and of all other courts of this state, in the trial and determination of causes, to be guided and controlled by the statutes of the state whenever there is a statute applicable to the question presented. Our observation is that many errors' have crept into the decisions of the courts of this state, especially in criminal cases, by following common-law rules and decisions of other states, overlooking our own statutes. These errors should be corrected whenever detected, and a strict adherence to statutes should be the rule governing courts in their decisions.”

The purpose of the said rule at common law was, as stated by text-book writers and the decisions of this court, that an accused had the right to know by the indictment with what offense he was charged, and, when the indictment charged in the alternative, he could not and did not know this. But it is álso the rule at common law that, when an offense may be committed in two or more ways, or by two or more means, an indictment is perfectly good which charges all of these things in the conjunctive, because thereby an accused is charged with each and every one of them, but that the state is entitled to a conviction when it proves either one of the various means or ways, and that the state does not have to prove but one, although it alleged many. Eor instance, in this case, under the old rule, appellant could have been charged by the indictment with carrying “on and about”; but the state was entitled to a conviction by proving either that he carried the pistol “on” or that he carried it “about” his person, and the state did not have to prove both that he carried it “on” and that he carried it “about” his person. Then, so far as the accused was concerned, he knew that under the statute he could be convicted if the state proved he carried the pistol either “on or about” his person, and he had to meet the proof of both contingencies just as he would have had if he had been charged with carrying it “on and about” his person. No more, no less.

Then let us see what our statutes clearly and unequivocally enact. Said article 475 is: “If any person * * * shall carry on or about his person * * * any pistol, * • * he shall be punished by a fine of not less than one hundred,” etc. Said act of 1881 (article 460, C. C. P.) is: “An indictment for any offense against the penal laws of this state shall be deemed sufficieht which charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment.” Article 469, O. O. P., is: “An indictment under the laws regulating the carrying of deadly weapons may charge that the defendant carried about his person a pistol, * * * without authority of law, without a further averment of a want of legal excuse or authority on his part.” Then article 473, C. C. P., which is section 14 of said act of 1881, is: “When the offense may he committed by different means, or with dif-ent intents, such means or intents may be alleged in the same count, in the alternative.” (Italics ours.) Article 9, P. C., is: “This Code, and every other law upon the subject of crime which may be enacted, shall be construed according to the plain import of the language in which it is written, without regard to the distinction usually made between the construction of penal laws and laws upon other subjects.” In neither of the above decisions relied upon by appellant is this statute even indirectly referred to. It seems to have been overlooked or ignored.

I have searched diligently and have been unable to find any decision of this court at any time since the enactment of said act of 1881 wherein it was held that said article 473 was not the law, or for any other reason invalid and inapplicable to this question. I therefore follow the plain and unequivocal enactment of the Legislature, and not said decisions relied upon by appellant, and hold that this indictment was perfectly valid. But the other members of this court do not agree with me and follow said decisions, and accordingly said indictment was bad, and in accordance with their holding this cause is reversed and dismissed.


author: PHILLIPS, J.

text:
    VINSON et al. v. W. T. CARTER & BRO.
    (App. No. 8629.)
    (Supreme Court of Texas.
    April 22, 1914.)
    1. Appeal and Error (§ 345) — Proceedings —Writ of Error to Court of Civil Appeals — Motion for Rehearing.
    The Supreme Court will not refuse a petition for a writ of error because of the failure of the Court of Civil Appeals to act directly upon the motion for the rehearing, which was not filed in time, where the Supreme Court has jurisdiction, and it is sufficiently shown that the failure to file a motion for a rehearing was due to accident or some cause other than the negligence of the applicant.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1895, 1896; Dec. Dig. § 345.j
    2. Appeal and Error (§ 338) — Peoceedings —Error to Couet of Civil Appeals — Limitation.
    It is essential to the jurisdiction of the Supreme Court that the petition for a writ of error be filed in the Court of Civil Appeals within 30 days from the overruling of a motion for a rehearing.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1879-1882, 3057; Dec. Dig. § 338.]
    3. Appeal and Error (§ 345) — Proceedings —Error to Court of Civil Appeals — Limitation. *

    The overruling by the Court of Civil Appeals of a motion for leave to file a. motion for rehearing, which was not filed within the time specified, is equivalent to an overruling of the motion for rehearing, and fixes the time from which the period for filing the petition and writ of error begins to run.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1895, 1896; Dee. Dig. § 345.]
    Trespass to try title by John F. Vinson and others, against W. T. Carter & Brother and others. A judgment for defendants was affirmed by the Court of Civil Appeals (161 S. W. 49), and plaintiffs .petition for writ of error.
    Petition dismissed.
    V. A. Collins and Lipscomb & Lipscomb, all of Beaumont, for applicant.

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

   PHILLIPS, J.

It is shown by the petition for writ of error that no motion for rehearing was filed in the Court of Civil Appeals within the time prescribed by the statute. It it stated that the failure to file such motion within the proper time was due to an undue and unanticipated delay in its transmission by express. A motion for leave to file the motion for rehearing as of time was overruled by the court on January 8, 1914. A second motion of the same nature was thereupon filed, and overruled on January 22, 1914. The petition for writ of error was filed in the Court of Civil Appeals more than 30 days after the overruling of the first motion for leave to file the motion for rehearing, but within 30 days from the overruling of the second motion.

We would not refuse to consider the petition for writ of error, notwithstanding. the Court of Civil Appeals had not acted directly upon the motion for rehearing, if we had jurisdiction and were of the opinion that it was sufficiently shown that the failure to duly file the motion for rehearing was due to accident or some cause other than neglect of the applicant. Sams v. Creager, 85 Tex. 497, 22 S. W. 399. It is apparent, however, that we are without jurisdiction. It is essential to the jurisdiction of this court to grant a writ of error that the petition for the writ be filed in the Court of Civil Appeals within 30 days from the overruling of the motion for rehearing. Schleicher v. Runge, 90 Tex. 456, 39 S. W. 279. Where under such circumstances as are shown here the Court of Civil Appeals declines to consider the motion for rehearing, its action in overruling a motion for leave to file it necessarily fixes the time from which the period prescribed for the filing of the petition shall be reckoned, as in such case the overruling of the motion for leave to file amounts to overruling the motion for rehearing. A different rule would permit an extension of the time fixed by the statute for the filing of the petition for. writ of error simply through the filing of successive motions of the same character.

Petition dismissed for want of jurisdiction.


author: JENKINS, J.

text:
    SOUTHWESTERN TRACTION CO. v. MELTON.
    (No. 5320.)
    (Court of Civil Appeals of Texas. Austin.
    March 25, 1914.)
    Appeal and Eeeoe (§ 635*)— Judgment — Failure of Transcript to Contain Judgment.
    Under Rev. St. 1911, art. 2078, authorizing appeals from final judgments, an appeal must be dismissed, where the transcript contains no judgment entered on the verdict, because of want of jurisdiction of the appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2285, 2776-2782, 2829; Dec. Dig. § 635.*]
    Appeal from Bell County Court; W. S. Shipp, Judge.
    Action by W. I. Melton against the Southwestern Traction Company. There was verdict for plaintiff, and defendant appeals.
    Dismissed.
    G. M. Felts, of Belton, for appellant. Durrett & Dyess and Edmund Heinsohn, all of Temple, for appellee.
   JENKINS, J.

This suit was brought by appellee against appellant to recover damages on account of the alleged negligent killing by appellant of a horse belonging to ap-pellee. Notwithstanding it appears from the briefs of the parties and from the record that there was a jury trial resulting in a verdict in behalf of appellee, still the transcript contains no judgment entered thereon, for which reason we have no jurisdiction of the attempted appeal. See article 2078, K. S. 1911.

It therefore becomes our duty to dismiss the appeal, and it is accordingly so ordered. Appeal dismissed.


author: SPEER, J.

text:
    POULTER v. WEATHERFORD HARDWARE CO.
    (No. 7864.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 21, 1914.
    Rehearing Denied March 28, 1914.)
    1. Chattel Mortgages (§ 114) — Future Indebtedness.
    A chattel mortgage will secure a future indebtedness of the mortgagor if that be the intention of the parties.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. § 191; Dec. Dig. § 114.]
    2. Chattel Mortgages (§ 114) — Indebtedness Covered.
    Defendant, a farmer, executed a chattel mortgage to plaintiff, the W. Hardware Company, for the purpose of securing the payment of certain promissory notes named in the mortgage and to secure a line of credit with the mortgagee, and the mortgage provided, after reciting the notes secured, that it was to be for “all other amounts I may now be due, or hereafter become due to' the W. Company or their assigns, such as book accounts, notes, or in any manner whatsoever, it being the intention of this mortgage to not only secure the debt created by me this day, but also to serve as a basis of credit with the grantees herein, or their assigns.” Held, that the mortgage did not cover a judgment rendered against the defendant in favor of a third party which plaintiff purchased, so that plaintiff could not foreclose the mortgage to secure payment of such judgment.
    [Ed. Note. — For other .cases, see Chattel Mortgages, Cent. Dig. § 191; Dec. Dig. § 114.]
    Appeal from Parker County Court; T. F. Temple, Judge.
    Action by the Weatherford Hardware Company against Ed Poulter. From a judgment for plaintiff, defendant appeals.
    Affirmed in part and reversed and rendered in part.
    Jno. L. Poulter, of Ft Worth, for appellant. H. C. Shropshire, of Weatherford, for appellee.

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

   SPEER, J.

This suit was instituted by the Weatherford Hardware Company against Ed Poulter to recover a balance of $32.35 due upon a promissory note and to foreclose a chattel mortgage lien for the satisfaction of such balance, together with the amount of a judgment against the defendant in favor of Lowe & Co., which judgment had been purchased by the plaintiff. The honorable county judge, before whom the case was tried, rendered a judgment in favor of the plaintiff foreclosing the lien as prayed for', and the defendant has appealed.

We adopt the trial court’s findings of fact and affirm his judgment in so far as the same is personal, but reverse and render judgment in favor of appellant in so far as the judgment seeks to foreclose the chattel mortgage lien as to the Lowe & Co. judgment. The disposition of the case involves a construction of the chattel mortgage. That instrument, in so far as it is necessary to quote,, is as follows: “This conveyance is intended as a mortgage to secure the payment of my indebtedness to the said grantees in the-sum of two hundred and twenty-five dollars, as evidenced by seven certain promissory notes bearing even date with this mortgage, and more particularly described as follows: 1 note for $25 maturing August 1, 1911, 1 note for $25 maturing September 1, 1911, 1 note for $25 maturing October 1, 1911, 1 note-for $25 maturing November 1, 1911, 1 note-for $25 maturing December 1, 1911, 1 note for $50 maturing September 1, 1912, 1 note-for $50 maturing October 1, 1912, all bearing ten per cent interest from date and providing a collecting agent’s fee of twenty-five per cent, if not paid when due, or if sued upon, and payable at Weatherford, Texas,, and for all other amounts I may now be due, or hereafter become due to the Weatherford Hardware Company, or their assigns, such as-book accounts, notes, or in any manner whatsoever, it being the intention of this mortgage to not only secure the debt created by me this day, but also to serve as a basis-of credit with the grantees herein, or their assigns, to secure any other amount I may now owe, or hereafter owe, as if the same-were specifically described herein.”

It cannot be doubted that a chattel mortgage will be operative to secure a future-indebtedness of the mortgagor where such is-the intention of the parties. That principle is not assailed in this decision, but the question is purely one of interpretation. If an indebtedness like the Lowe & Co. judgment was in contemplation of the parties at the-time of the execution of the instrument being considered, then undoubtedly the lien would be security for it; but otherwise it would not be.

Even ordinarily the provision for the-application of the mortgage to “all other amounts I may now be due or hereafter become due” would be held to apply to debts of the general kind of that specifically secured. But in the present case all doubts as to this being the real intention of the parties are removed by the further stipulation contained in the instrument, “it being the-intention of this mortgage to not only secure the debt created by me this day, but also-to serve as a basis of credit with the grantees herein, or their assigns.” Thus we ha vean exegesis by the parties themselves of the meaning of the language which otherwise-might at most only be ambiguous. It is apparent from the situation of the parties, one-being a merchant and the other a farmer in need of supplies; and the language employed in the mortgage, that the purpose of the parties was that the mortgagor was to secure a line of credit with the mortgagee, and that the chattel lien should extend to those credits which were given in furtherance of the purpose of the parties. Appellant in no manner requested appellee to take up the Lowe & Co. judgment, and the voluntary purchase by appellee would not authorize it to have a foreclosure of the chattel mortgage executed designably to serve as a basis of credit with it. Martin v. Halbrooks, 55 Ark. 569, 18 S. W. 1046.

The judgment of the county court foreclosing the chattel mortgage lien as to the Lowe & Co. judgment is therefore reversed and here rendered for appellant, but in all other respects the judgment is affirmed, except that appellant is awarded the costs below by reason of his tender of the full amount due on the mortgage indebtedness.