author: PHILLIPS, C. J.

text:
    BROWDER et al. v. MEMPHIS INDEPENDENT SCHOOL DIST. et al.
    (No. 2783.)
    (Supreme Court of Texas.
    Dec. 22, 1915.)
    1. Courts <&wkey;64 — District Courts — Special Terms — Jurisdiction—Statutes.
    Rev. St. 1911, art. 1720, declares that whenever it may become advisable, in the opinion of a district judge, to hold a special term of the district court, such term may be convened. Article 1723 declares that no new civil cases can be brought to a special term of the district court; while article 1724 declares that •causes submitted at special terms of court shall be governed by the ordinary rules of procedure with relation to summoning juries, appeals, etc. Article 1852 provides for citation to defendants. A suit against an independent school district and others returnable to the next regular term in June was tried at special term held in February. The defendants who requested the holding of the special term appeared and answered. Held that, as a court acquires jurisdiction over a defendant by his voluntary appearance the ■same as it does by service of process, the court at the special term had jurisdiction notwithstanding the cause could not have been tried at such term had it been necessary to issue ordinary process to bring in defendant.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 218-229; Dec. Dig. &wkey;64.]
    ■2. Appeal and Error <§=1082 — Review op Intermediate Courts — Questions Reviewable.
    In a suit to annul an order of the board of •trustees of a school district for the issuance of 'bonds, assignments of error relating to the action of the trial court in overruling plaintiffs’ motion for continuance and complaining of the .admission of evidence do not present questions ■of substantive law, which on writ of error to the Court of Civil Appeals the Supreme Court lias jurisdiction to determine.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1133-1136, 4270, 4281-•4284, 4289-4292; Dec. Dig. &wkey;1082.]
    Error to Court of Civil Appeals of Seventh Supreme Judicial District.
    Action by John Browder and others against the Memphis Independent School District and •others. A judgment for defendants being affirmed by the Court of Civil Appeals (172 S. W. 152), plaintiffs bring error.
    Affirmed.
    H. D. Spencer and Moss & Leak, all of Memphis, and Ramsey, Black & Ramsey, of Austin, for plaintiffs in error. Presler & Thorne, of Memphis, for defendants in error.
   PHILLIPS, C. J.

The purpose of the suit, instituted by the plaintiffs in error, was to have annulled an order of the trustees of the Memphis independent school district for the ■issuance of bonds in the amount of $40,000 for the benefit of the district, and to obtain a ■cancellation of the bonds. A previous suit had been filed by the same plaintiffs against -the same defendants on January 20, 1914, in which an injunction was applied for to restrain the sale of the bonds. Its trial was entered upon at the regular term of the court, but the plaintiffs took a nonsuit. That term of the court adjourned on January 21, 1914.

This suit was filed on January 23,1914, and was properly returnable to the next regular term, convening on June 1, 1914. The district judge on February 12, 1914, ordered a special term of court to convene February 26, 1914, for the purpose, it appears, of trying this case; the defendants having requested that a special term be ordered for that purpose. The defendants appeared and answered at the special term, and the case was tried at such term, resulting in a judgment for the defendants; a plea to the jurisdiction interposed by the plaintiffs being overruled. The principal question in the case is in respect to the authority of the court to try the case at the special term. The plaintiffs in error contend that it had no such authority.

The articles of the statutes which bear upon the question are as follows:

“Art. 1720. Whenever it may become advisable, in the opinion of a district judge, to hold a special term or terms of the district court in any county in his district, such special term or terms may be held; and such district judge may convene such special term at any time which may be fixed by him. * * * ”
“Art. 1723. No new civil cases can be brought to a special term of the district court.
“Art. 1724. The juries for any special term shall be summoned in accordance with the law* regulating juries at regular terms of court; and at any special term all proceedings may be had in any ease which could be had at any regular term of such court; and all process issued to a previous regular term or to such special term, and all orders, judgments and decrees, and all proceedings had in any ease, criminal or civil, which would be lawful if had at a regular term, shall have the same force and effect; and any proceeding had may be appealed from under the same rules, regulations and limitations as provided for in appeals from regular terms of court.”

A court acquires jurisdiction over a plaintiff by his submission to it of the cause of action which he alleges. A voluntary appearance is as effectual to confer jurisdiction over a defendant as tbe due service of process. The case was cognizable by the district court. The defendants, as already stated, entered their appearance at the special term. The question of the court’s jurisdiction, therefore, does not arise unless the effect of article 1723 is to interdict the trial of a new civil case at a special term of the district court.

Article 1723 prohibits the bringing of a new civil case to a special term; and it is plain that a defendant would not be required to answer at such term. It does not purport to deal with the power of the court to try a new civil case at a special term where its jurisdiction of the defendant is made complete by other means than the service of process. It is apparent that the purpose of the article was to make it clear that such cases should be brought, not to the special term, but to the succeeding regular term, as prescribed by article 1852. But according to its terms it has no further scope than a regulation in respect to the term to which such cases shall be returnable — a different matter from the authority of the court to try such a case at the special term where the defendant submits himself to the jurisdiction. If it had been the intention of the Legislature that under no circumstances should a new civil case be triable at a special term, it must be assumed that it would have expressed that purpose in language much more direct than that employed in this article.

As affecting the court’s jurisdiction, under article 1723, to try the ease at the special term, the question presented is not materially different from that of the authority of the court to try at a regular term a suit filed during such term where the defendant then appears and answers. In such an instance there would be, under article 1852, as clearly a denial of any authority to bring the case to the regular term as there is under article 1723 to bring a new civil case to a special term. Yet, in virtue of the defendant’s appearance, there could be no doubt of the case being triable at that term. Pierson v. Burney, 15 Tex. 272; Lang v. Henke, 22 Tex. Civ. App. 490, 55 S. W. 374.

The purpose of the original act of 1879, of which article 1723 is a part, and the amendatory act of 1905, was to provide for the facilitation of the business of the court, and their provisions should be construed so as to accomplish the purpose of their enactment. It can hardly be supposed that the object of article 1723 was, in part, to prevent the trial, though with the consent of the parties, of any new civil case at a special term. Yet such would be the effect of the article if it be given the construction for which the plaintiffs in error contend. There is nothing in the several articles relating to the subject which confines the cases tria-ble at a special term to only those which were triable at a preceding regular term; and, in the absence of such express provision, they ought not to be so construed.

The provision in article 1724 that all process issued to a previous regular term should have the same force and effect at the special term is of no controlling influence upon the question. It merely makes such process available for the special term. There is no suggestion in the provision that the court at the special term is limited to that process, and, for such reason, only cases triable at a previous regular term may be then tried. The same article provides for the issuance of process to the special term; and even without such provision we think the court would have that power. Under the appearance of the defendants at the special term, there can be no question of the jurisdiction of the court to try the ease at that term.

The assignment of error relating to the action of the trial court in overruling the plaintiffs’ motion for a continuance does not present a question of substantive law, and we therefore have no jurisdiction to review that ruling. For the same reason we are without authority, under the remaining assignment in the petition for writ of error, to review the action of the Court of Civil Appeals upon the assignments of error made in that court concerning the rulings of the trial court on the admission of certain testimony. The admissibility of this testimony cannot be said to constitute a question of substantive law in this case.

The judgments of the district court and the Court of Civil Appeals are affirmed.
      <§=For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    ROWLETT v. STATE.
    (No. 3859.)
    (Court of Criminal Appeals of Texas.
    Dec. 8, 1915.)
    1. Indictment and Information <&wkey;132 — Trial — Election between Counts.
    Where the court submitted to the jury only the first count of an indictment charging the breaking and entering of a house, not submitting a second count charging a nighttime burglary of a private residence, the action was tantamount to an election by the state.
    [Ed. Note. — Por other cases, see Indictment and Information, Cent. Dig. §§ 425-447, 449-453 ; Dec. Dig. &wkey;132.]
    2. Criminal Law <&^>1165 — Appeai>-Haemless Error — Submission of Count.
    On a trial for burglary, where the testimony was doubtful as to whether the house was burglarized in the daytime or at night, though the testimony would have warranted the court in submitting to the jury both counts of the indictment, the first charging that accused broke and entered a house, and the second charging a nighttime burglary of a private residence, no objection being made to the charge before the first count alone was submitted to the jury, defendant had no just ground of complaint.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3085, 3086, 3088, 3089; Dee. Dig. <&wkey;>1165.]
    3. Criminal Law <&wkey;1091 — Appeal — Bills of Exception.
    Bills of exception to the overruling of defendant's motion for new trial, and to the refusal to instruct a verdict, setting out no facts, but simply reciting that defendant excepted to the action of the court, presented nothing for review.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. <&wkey;>1091.]
    4. Criminal Law <&wkey;1160 — Conviction—Support by Proof.
    Where the evidence showed without controversy that a house was broken and entered, and a piece of jewelry stolen, which, on the next day, was pawned by one whom the pawnbroker positively identified as defendant, a conviction of burglary will be sustained on appeal where the finding has been approved by the trial judge.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. § 3084; Dec, Dig. <S&wkey;1160.]
    5. Criminal Law (&wkey;652 — Trial—Identification of Defendant.
    In a prosecution for burglary, there was no error in the court’s failing to place defendant among other men for identification by a pawn
      broker, so that the latter might be required to pick out the defendant and identify him among other persons, the discretion of the court controlling in such matters.
    [Ed. Note. — Eor other cases, see Criminal Raw, Cent. Dig. § 873; Dec. Dig. <&wkey;652.]
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    James A. Rowlett was convicted of burglary, and lie appeals.
    Affirmed.
    John H. Crooker, Criminal Dist. Atty., T. J. Harris, and E. T. Branch, all of Houston, and C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was indicted for burglary under the name of Tom Jones, and on the trial suggested his true name as James A. Rowlett, and at his suggestion his name in the indictment was so changed, and the trial resulted in a verdict of guilty assessing his punishment at three years in the penitentiary, and from the judgment thereon he appeals.

The indictment contained two counts charging the same transaction, the first being for an ordinary burglary, alleging that the accused “did break and enter’ a house, and the second count charging a nighttime burglary of a private residence. The court gave appellant the benefit of the doubt under the testimony, and submitted only the first count, and, under the well-settled holdings of this court, this was tantamount to an election by the state; and, as said in Hopkins v. State, 61 Tex. Cr. R. 596, 135 S. W. 553, this was to the advantage of the accused. The testimony was doubtful as to when the house was burglarized, whether in the daytime or at night; the alleged owner not being present when the property was missed, and his wife having missed the property for the first time between 8 and 9' o’clock, possibly a little before 8 in the morning. It is true that it appears tliat the testimony also would have warranted the court in submitting both counts to the jury, but no objection was made to the charge before the case went to the jury; and as there was testimony to support the count submitted, and that count was favorable to the accused, he has no just ground of complaint. Perhaps the only difference in the result had the court submitted both counts would have been to cause the appellant to receive a more severe punishment. The burglary of a private residence in the daytime is on the same basis as an ordinary burglary; and hence there is nothing in appellant’s motion for new trial or his bill of exceptions that would warrant a reversal on this account. Appellant has a bill of exceptions taken to the overruling of his motion for new trial and to the refusal to order an instructed verdict. These bills set out no facts, but simply recite that appellant excepted to such action of the court, and of course, present nothing to review.

Appellant claims that the evidence is insufficient to support the verdict. It is unnecessary to state all the testimony. The proof shows, without controversy, that the house of the alleged injured party was broken and entered and a piece of jewelry known as a “lavalliere” was taken, which on the day after was pawned in a pawnshop in the city of Houston by appellant. The pawnbroker positively identified appellant as the party who pawned the stolen property.

Appellant neither testified nor introduced any testimony. It is well settled by the authorities that, in a case of burglary, if the state proves that a burglary as alleged was committed by some one, and, based on proof that the accused was found in possession of property recently stolen from the burglarized house, the jury have found him guilty of the burglary, and that finding has been approved by the trial judge, whose duty it is to set the conviction aside if not satisfied that he is guilty as charged, the judgment will be sustained on appeal unless clearly wrong. Payne v. State, 21 Tex. App. 184, 17 S. W. 463; Rust v. State, 31 Tex. Cr. R. 75, 19 S. W. 763; Roberts v. State, 60 Tex. Cr. R. 23. 129 S. W. 611; Spencer v. State, 61 Tex. Cr. R. 60, 133 S. W. 1049; Wilson v. State, 71 Tex. Cr. R. 330, 158 S. W. 1114; Powers v. State, 72 Tex. Cr. R. 290, 162 S. W. 832; Lewis v. State, 72 Tex. Cr. R. 377, 162 S. W. 866; O’Fallin v. State, 169 S. W. 897; Hamilton v. State, 177 S. W. 496.

The only other ground presented by appellant is that the court erred in not having him placed among other men, so that the pawnbroker might be required to “pick out the defendant and identify him among other persons.” We know of no rule of law requiring this to be done, and, in the absence of a showing of an abuse of the sound discretion of the court necessarily confided to him in such matters, the judgment cannot be reversed on this account. The pawnbroker was positive in his identification and without any interest in the matter, nor did he display any, and the weight to be given to his testimony was for the jury.

The judgment is affirmed.
      <&wkey;Eor other oases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, P. J.

text:
    ROBERTS v. STATE.
    (No. 3811.)
    (Court of Criminal Appeals of Texas.
    Dec. 15, 1915.)
    1. Criminal Law <&wkey;598 — Continuance— Diligence.
    A motion filed by accused for a continuance was properly denied where it clearly showed a lack of diligence.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent.' Dig. §§ 1335-1341; Dec. Dig. 598.]
    2. Criminal Law <&wkey;1144 — Appeal—Denial oe New Trial — Presentation eor Review.
    The denial of a new trial sought for newly discovered evidence, in a criminal case, will be presumed on appeal to have been correct, where such evidence is not shown in the record.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2764, 2766-2771, 2774-2781, 2901, 3016-3037; Dec. Dig. &wkey;1144.]
    3. Cbiminal Law <&wkey;939 — New Trial — Newly Discovered Evidence — Diligence.
    A new trial sought for newly discovered evidence was properly denied where it appeared that accused used no diligence to discover such evidence before the trial, and that with any reasonable diligence he would have discovered it.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2318-2323; Dec. Dig. <S&wkey; 939.]
    Appeal from District Court, San Augustine County; A. E. Davis, Judge.
    Clyde Roberts was convicted of assault with intent to murder, and he appeals.
    Affirmed.
    Foster & Davis, of San Augustine, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of an assault with intent to murder, and his punishment assessed at seven years in the penitentiary.

The evidence, while contradictory, is clearly sufficient to sustain the verdict.

Appellant made a motion for a continuance, which the court overruled. It so clearly shows a total lack of diligence that it is unnecessary to state or discuss it. Stacy v. State, 177 S. W. 115.

Appellant has three bills of exception, complaining of the argument of the district attorney. The hills are very meager, and merely complain of a short sentence of the district attorney’s argument in each instance, and in no way give any statement of the case so as to show under what circumstances they were made, nor do they show any such state of facts as to show the remarks were improper. We have considered each of the bills on the subject, and, in our opinion, the district attorney from the record was clearly authorized to make the arguments complained of, and that neither of his hills shows any error. Pierson v. State, 18 Tex. App. 524; Bass v. State, 16 Tex. App. 69; House v. State, 19 Tex. App. 227; Mooney v. State, 176 S. W. 52.

The only other complaint is that the court should have granted, a new trial because of claimed newly discovered evidence. The judgment of the court shows that, when he heard appellant’s motion for a new trial, he heard the evidence thereon submitted, and then overruled his motion. What that evidence was is in no way shown in this record by bill of exceptions, statement of facts, or otherwise. It is the well-settled law of this state that, under such circumstances, we must, and do, presume the action of the court was correct, and that the evidence justified his action. Knight v. State, 64 Tex. Cr. R. 564, 144 S. W. 967; Graham v. State, 73 Tex. Cr. R. 34, 163 S. W. 726; Morris v. State, 73 Tex. Cr. R. 67, 163 S. W. 709; Hoskins v. State, 73 Tex. Cr. R. 109, 163 S. W. 426, and authorities cited in the opinions in these cases. Besides this, the record as it is amply shows that appellant used no diligence to discover this claimed newly discovered evidence before the trial, and that any reasonable diligence on his part would have discovered this evidence. Section 1149, White’s Ann. C. C. P.

The judgment is affirmed.
      <i&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAYIDSON, J.

text:
    PIERSON v. STATE.
    (No. 3708.)
    (Court of Criminal Appeals of Texas.
    Dec. 8, 1915.)
    1. Indictment and Information <&wkey;51 — Requisites.
    Where Rev. St. art. 347, provided for the appointment of assistant county attorneys, an affidavit taken by one named as “assistant county attorney” cannot be quashed on the ground that he was a deputy, and not an assistant.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 161; Dec. Dig. @=351.]
    2. Criminal Law <&wkey;784 — Trial — Instructions — Circumstantial Evidence.
    In a prosecution for theft of a can of lard, where the evidence was that the can was in a railway car at noon, but later disappeared, and that some time after noon the defendant had a witness haul a similar can from the railroad yards, the defendant was entitled to a charge on circumstantial evidence; the inference that he took the can being based on the circumstances of its disappearance and subsequent possession of a similar can'by him.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 18S3-188S, 1922, 1960; Dec. Dig. <&wkey;>784.]
    3. Criminal Law <&wkey;1134 — Appeal — Scope of Review.
    Whether refusal to grant a continuance for defendant to produce his wife as a witness was error will not be reviewed, where the case is reversed on other grounds; her testimony being available on the second trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2587, 2653, 2986-2998, 3056, 3067-3071; Dec. Dig. &wkey;1134.]
    4. Criminal Law &wkey;>387 — Trial—“Negative Evidence’ ’ — Admissibility.
    In a prosecution for larceny of a 50-pound can of lard, it was error to exclude, as negative evidence, the testimony of a witness who would have testified that she was frequently in the defendant’s house, and never saw more than 35 cents worth' of lard, that she frequently cooked there for him, and was there when another witness stated he delivered the can of lard, and that he did not deliver it; and the error was not cured by the admission of testimony of another witness that she had never seen the lard in defendant’s house.
    [Ed. Note. — For other eases, see Criminal Law, Dec. Dig. <&wkey;>387.]
    5. Larceny <&wkey;32 — Ownership of Stolen Goods.
    In a prosecution for larceny of a can of lard from a freight car in the local yards, ownership of the lard was properly alleged in the local freight agent having control of the yards, where the foreman of the freight warehouse testified that he was under the control of the local freight agent.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 81-92, 99; Dec. Dig. @=32.]

      Appeal from Criminal District Court, Dallas County; W. L. Crawford, Jr., Judge.
    W. H. Pierson was convicted of a misdemeanor theft, and he appeals.
    Reversed and remanded.
    McCutcheon & Church, of Dallas, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAYIDSON, J.

Appellant was convicted of misdemeanor theft; his punishment being assessed at a fine of $25 and 15 days’ imprisonment in the county jail.

Motion was made to quash the affidavit because it was taken by Cavin Muse, “assistant county attorney.” The theory upon which the motion is predicated seems to be he was a deputy, and not an assistant, county attorney. The statute provides for an assistant county attorney. Article 347, Revised Civil Statutes. It provides that the county attorney shall have power, by consent of the commissioners’ court, to appoint in writing one or more assistants, not to exceed three, for their respective counties, etc. Under this record it is shown that this affidavit was taken by Cavin Muse as “assistant county attorney.” This statute has been passed on by this court in several cases. See Dane v. State, 36 Tex. Cr. R. 84, 35 S. W. 661; Kelly v. State, 36 Tex. Cr. R. 480, 38 S. W. 39; Wilkins v. State, 33 Tex. Cr. R. 320, 26 S. W. 409; Naill v. State, 59 Tex. Cr. R. 484, 129 S. W. 630, Ann. Cas. 1912A, 1268, is not in point. The question was not the same. In that case the city attorney was authorized to appoint deputies, and the party who was offered to be bribed was charged to be an assistant. Whether that opinion was correctly decided or not is not necessary to discuss, because the question is not here involved.

Before the argument began appellant requested the court to give a charge on circumstantial evidence, which was refused. In our judgment this charge ought to have been given. The state’s testimony in substance is that appellant took a can of lard of 50 pounds weight from a car in the yards of the Santa Fé Railway in the city of Dallas. It discloses there was a crate of lard in a box car destined for Gainesville, Tex. The yardmaster testified that he saw it in the car before noon, and it was missing in the afternoon. He found the crate from which the ■can of lard had been taken somewhere about the yard, or on the railroad track in the yard. A witness named Lewis testified that appellant’s wife employed him to go down to the depot to bring her some coal. Upon arriving at that point he found appellant and told him his mission. He was directed by the appellant to go to the far end of the platform, which he did. Lewis says he came to the depot, and appellant put the can of lard in his dray, as well as several sacks of coal; that the can of lard was put under the seat and the coal put in afterwards. By this the idea is sought to be conveyed that the can pf lard was so situated in his dray that it could not be seen, except from the front. This was done in the yards and in a public manner. Lewis says that he carried a can of lard and the coal to appellant’s residence and delivered same to his wife. This was all denied by defendant’s testimony, the defendant himself not.taking the stand, and his wife did not, because she was absent from the county. A continuance was asked for her. A woman was permitted to testify, however, that she was at appellant’s house when the drayman came with the load, and that he did not bring or deliver a can of lard. So far as the facts are concerned, this is a substantial statement.

Under this view of the testimony we are of opinion that the charge on circumstantial evidence ought to have been given. The incriminating fact or facts relied upon by the state center in and about the fact that appellant had a can of lard; that he put it in the drayman’s dray. Where he got that can of lard is not shown. By circumstances it is shown that the can disappeared from the car, and that appellant later turned over a can of lard to the drayman to cany to his house, which he says he delivered, and other witnesses say he did not. The can of lard was in no way identified as the can that was in the car. Conceding the state’s testimony to be as contended, there is nothing either as to the size or marks or anything that indicated that this particular can came out of the car. Had the can been identified, possession is the main incriminating fact relied upon. This is clearly a case of circumstantial evidence, and the court should have given the charge as requested. Possession of an unidentified can of lard by appellant is the state’s case as to the taking.

There was a motion made for continuance on account of the absence of the wife. It is more of an equitable than a legal showing. This will not arise upon another trial, and therefore is not discussed. The testimony of the wife can be obtained.

A witness introduced by defendant testified that she was in and about appellant’s home a great deal, and was familiar with it. He then proposed to carry this further, and asked her if, while she was around his place, she ever saw a 50-pound can of lard. “How much were you around there?” The assistant county attorney objected, and stated:

“You can bring 150,000 people here to testify that they didn’t see any lard around the kitchen.”

The court sustained the objection. Appellant’s counsel said he wanted to except, and for this purpose, and to perfect his bill, wanted to ask a few more questions:

“What opportunity did you have around there to see any lard, if there had been any (meaning Henry Pierson’s house and kitchen, kept by himself and wife) ?”

The assistant county attorney objected again, because it was only her opinion as to what opportunity she would have.

“Mr. McCutcheon: We except. How much were you there during that time? A. Every day, mornings and evenings, too. I was there in the evening that the man came with the coal. There wasn’t a day passed that I was not there.”

She would have testified, had she been permitted, that she was there on the day when this coal was brought, which was on 10th of December, and every day thereafter, and had never seen any 50-pound can of lard there, or any can of lard whatever. The court refused to permit this witness to state and detail to the jury the opportunity she had for seeing the lard, if there had been any at the place, and appellant excepted. Had he been permitted, he could have further proved by witness that she frequently cooked meals at said house for the defendant and his wife; that she frequently ate there; that she spent a great deal of her time there, and had never seen a 50-pound can of lard at said house, nor any lard there in quantities larger than “two bits’ worth” at a time. Following this up, he offered another witness, Sylvia Childress. She did not testify, as the court stated that the witness’ negative testimony would not be admissible, and, if permitted, she would have testified that on the afternoon of the 10th of December, 1914, she was at the house of the defendant; that she frequently went there, and was familiar with the kitchen and the household affairs; that she did not at any time in said house see a 50-pound can of lard, nor any lard, except a very small amount, of approximately 10 to 35 cents’ worth, used for cooking. The court qualifies as follows:

“The defendant was permitted to prove by the witness Clementia Bradford that she was around the defendant’s kitchen on the 10th day of December; that she was there the afternoon the man came with the coal; that there was not a day passed that she was not there, both morning and evening. The witness testified without objection that she had never seen a 50-pound can of lard around defendant’s kitchen.”

As qualified, some of the matters are not objectionable; but this does not cure the error as to the other witness. There was no objection to her testimony, except that the court had stated she would not be permitted to testify to these facts. This negative testimony, as it is termed, became very material, and was of a cogent nature. Besides, two witnesses being placed in the same relation to the same transaction: One testifies that it occurred; the other testifies he was there, and no such thing occurred. This would be, of course, contradictory, one of the other; but it certainly would be permissible to show that the witness had every opportunity to see and testify as to the facts, in order that the jury may pass upon the question. Such witness had the same opportunity to observe and know the facts. It may be negative in nature, but the force and weight of such testimony, is for the jury, and if they conclude he was placed in the same attitude and same relation, and had the same opportunity, although it was a denial of the facts stated by the other witness, it would not render the testimony inadmissible. It goes more to the weight, than admissibility or competency, of the evidence.

The question of ownership became an issue in the case. There was testimony introduced from the state’s witnesses to the effect that the alleged owner, being the local agent, had control and management of the cars in the railroad yard. Ownership was alleged in the local freight agent. He had control of the yards and the cars therein. The foreman of the freight warehouse testified he was agent under the local depot agent, and as such had control of what he called the “truckers.” They seem to be hands employed, and handled the stuff that came in the cars, taking it out and reloading, and matters of that sort, and for that purpose his testimony indicates that he had exclusive control and management as foreman under the depot agent. The case presents itself on close lines, but our opinion is he was more in the nature of a servant or employs under the supervising agency of the local freight agent, who was present in the yards and about the yards, and had actual control of all those matters. It is not like one of those cases where the foreman has charge in the absence of the owner. We are of opinion that under the facts here the ownership was properly alleged in the depot freight agent.

For the errors discussed, the judgment is reversed, and the cause remanded.
      ©soFor other cases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    WEBER v. STATE.
    (No. 3858.)
    (Court of Criminal Appeals of Texas.
    Dec. 8, 1915.)
    1. Forgery &wkey;>28 — Forgery of Deeds — Indictment— SUFFICIENCY.
    Under Pen. Code 1911, art. 947, providing the penalty for forging a deed purporting to be the act of another, it is sufficient for the indictment to allege that the deed forged purported to-be the act of another, and it is not necessary to name the pretended grantor.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 66-70, 74-76; Dec. Dig. &wkey;28.]
    2. Indictment and Information <&wkey;86 — For-geky oe Deeds — Place oe Offense.
    An indictment for forgery of a deed, which failed to allege the location of the land, but included a copy of the forged deed, which described the land as lying in J. county, and also alleged that the forgery was done in J. county, sufficiently showed jurisdiction of the offense in that county.
    [Ed. Note. — For other eases, see Indictment and Information, Cent. Dig. §§ 230-243; Dec. Dig. <§=o86.]
    3. Indictment and Information &wkey;>79 — Forgery of Deeds — Intelligibility.
    An indictment for forgery of a deed, which employed the words “with intent to injure and defraud and defraud,” was not therefore unintelligible.
    [Ed. Note. For other cases, see Indictment & Information, Cent.Dig. §§ 209-214; Dec.Dig.&wkey;?79.]
    4. Forgery c&wkey;27 — Forgery of Deeds — Indictment — Sufficiency.
    Under Pen. Code 1911, art. 947, providing a penalty for forgery of a deed with intent to defraud, an indictment alleging that defendant “did then and there without’lawful authority, and with intent to injure and defraud, willfully and fraudulently did make and forge a false instrument in writing purporting to be the act of another,” sufficiently alleges the intent essential to the offense.
    [Ed. Note. — Eor other cases, see Forgery, Cent. Dig. § 62; Dec. Dig. &wkey;>27.]
    5. FOEGEEY <&wkey;29 — FORGERY Off DEEDS — INDICTMENT — UNNECESSARY Allegations.
    Under Pen. Code 1911, art. 947, providing a penalty for forgery of a deed with intent to defraud, an indictment alleging that defendant, without lawful authority and with intent to injure and defraud, willfully and fraudulently made and forged a false instrument in writing purporting to be the act of another, “which false instrument related to and affected an interest in the land in the state of Texas, and was so falsely made that, if it were true and genuine, it would have affected and transferred title to land in Texas,” was not bad for alleging unnecessary facts descriptive of the land involved, sufficient to invalidate it.
    [Ed. Note. — For other eases, see Forgery, Cent. Dig. §§ 77-81; Dec. Dig. &wkey;29.]
    Appeal from District Court, Jefferson County; W. H. Davidson, Judge.
    Henry Y. Weber was convicted of forging a deed, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of forging a deed, and was assessed the lowest punishment. There is neither a bill of exceptions or statement of facts. The indictment and prosecution were under article 947, P. C., which was quoted in full in Thompson v. State, 69 Tex. Cr. R. 82, 152 S. W. 893.

After the necessary preliminary allegations, the indictment alleges that appellant, on or about March 12, 1915, in Jefferson county, Tex., “then and there, without lawful authority and with intent to injure and defraud and defraud, willfully and fraudulently did make and forge a false instrument in writing, purporting to be the act of another, which false and forged instrument did then and there relate to and affect an interest in land in the said state of Texas, and was then and there so falsely made by the said Henry Y. Weber in such manner that, if the same were true and genuine, it would have affected and transferred the title to certain land in the said state of Texas, and which said false instrument purports to be a deed conveying certain land from Tom Lucid to Henry V. Weber, and is to the tenor following.” Then follows a copy of what, if genuine, would have been a deed from Tom Lucid to appellant, conveying certain lots in Beaumont, Tex., dated March 12, 1915. Then follows a certificate of acknowledgment and a certificate of registration. Appellant made a motion to quash the indictment on the ground that it charges the forged deed to be the act of another, but does not state whose act it purports to be. This was unnecessary. Hardin v. State, 60 Tex. Cr. R. 129, 131 S. W. 552.

His next ground is that the court was without jurisdiction, because the indictment did not show in what county the land was located which the forged deed conveyed, and that the indictment was unintelligible, because it used the words “and defraud” twice. The forged deed copied in the indictment showed that the land purported to be conveyed thereby was in Beaumont, in Jefferson county, Tex., and the indictment alleged, in addition, expressly that said deed was forged in Jefferson county, Tex. The indictment was good against these objections.

After the trial the appellant made a motion in arrest of judgment substantially on these grounds: (1) That the indictment did not set out any of the statutory elements of intent in the purport clause as prescribed in said article of the act prescribing the offense; (2) because said indictment in the purport clause charges additional and unnecessary facts descriptive of the land described in the forged deed, which rendered it invalid. We think the indictment was valid against these objections, and the court correctly overruled both his motion to quash and in arrest of judgment. There is no other question raised in the case.

The judgment is affirmed.
      cgx^jFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    WILLIAMS v. STATE.
    (No. 3823.)
    (Court of Criminal Appeals of Texas.
    Dec. 8, 1915.)
    Homicide <&wkey;250 — Evidence—Sueeiciency.
    In a prosecution for murder, evidence held to warrant a conviction and imposition of the death penalty.
    [Ed. Note. — For other eases, see Homicide, Cent. Dig. §§ 515-517; Dec. Dig. <&wkey;>250.]
    Appeal from District Court, Brazoria County ; Sam’l. J. Styles, Judge.
    Chestnut Williams was convicted of murder, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of murder, and his punishment assessed at death. There is no bill of exceptions in the record. There was no exception to the court’s charge. He made a motion for a new trial on these grounds; (1) Claiming that the verdict is contrary to the law and unsupported by the evidence. (2) That the evidence adduced is not of that weight and does not come from that source that the law requires in order to justify the infliction of the death penalty. (3) That the witnesses showing his guilt were felony convicts, and their testimony was not entitled to that weight and credibility that would authorize the infliction of the death penalty. (4) That the jury were out only 20 minutes in considering their verdict, and that, in substance, this of itself shows the jury did not seriously consider the case. One of the attorneys appointed by the court to defend appellant made an affidavit that the jury were out in consideration of the case only 20 minutes. (5) That the killing occurred in a room where there were 30 or 40 persons, and that upon a more thorough investigation and inquiry among these persons other testimony might be had showing, or tending to show, that some other person than appellant killed deceased, and that upon another trial a different verdict would probably' be rendered. (6) That at the time, and since the homicide, he had been closely confined and chained, and had no opportunity to investigate and prepare his defense; that the death penalty was too extreme harsh and cruel to be enforced under the facts and circumstances of the case.

The judgment overruling appellant’s motion for a new trial shows the trial judge heard the evidence on consideration of this motion. What that evidence was is in no way disclosed in this record.

The evidence by all the witnesses, and without contradiction, .shows that both appellant and deceased were state convicts at the time of the homicide. They, with some 30 others, were in one of the state prison houses on one of the state convict farms. They were all locked up in this house at the time. Deceased was lying back in a barber chair in the room being shaved by another one of the convicts, with his face at the time he was cut turned to one side and away from whoever cut his throat. A state of ill feeling or hostility at the time existed between appellant and deceased; appellant himself testifying that a short time before they had had a fuss about a hoe, but about nothing elSe. Several others testified that they had had a fuss about a can of molasses also. At any rate, it seems there was no question but that ill will existed between them. One of the white guards, not a convict, testified the deceased just a few days before had requested him to transfer him from that prison house to another, because appellant was also imprisoned therein. Appellant himself testified that he did not cut or kill the deceased, but claimed he did not know who did. Some other witnesses for him also testified that they did not see who killed the deceased. Perhaps one or more said that appellant was not at the chair when the deceased was cut. No ill will or trouble is shown to have existed between deceased and any of the other convicts in said house. Eive witnesses testified that they saw the killing; that, while deceased was in the barber chair, as described, with his face turned from where appellant was, appellant approached him deliberately, put his left hand on the forehead of deceased, and with a razor or some other sharp instrument or knife cut his throat practically from ear to ear,, severing his windpipe and artery, from which he soon died; that, when appellant thus cut. his throat, deceased jumped up and ran to the guard in the center of the room; that appellant ran after him and cut him in the back; or side one time while he was running; that deceased did not speak after he was cut,, because he could not; that, when he got to' the guard, he tried to talk, but could not.

We think the testimony overwhelmingly established a cold-blooded, premeditated, malicious, and cruel murder of the deceased by appellant. It further occurs to us that, if the death penalty ought to be assessed in any case, this is a case justifying it. We-further think that the appellant’s motion for a new trial presents no ground which would authorize or justify this court to reverse this-case.

The judgment is affirmed.
      ©=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    DAVIS v. STATE.
    (No. 3865.)
    (Court of Criminal Appeals of Texas.
    Dec. 15. 1915.)
    Assault and Batteey <&wkey;>91 — Peosecution—■ Evidence — Sufficiency.
    In a prosecution for assault, evidence held to warrant conviction.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. § 136; Dec. Dig. &wkey;>91.]
    Appeal from Panola County Court; George Harkrider, Judge.
    Lem Davis was convicted of assault, and he appeals.
    Affirmed.
    J. G. Woolworth and R. W. Priest, both of Carthage, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of an assault, and fined $5, from which judgment he prosecutes this appeal.

There is one assignment of error, and that is the evidence is insufficient to support the verdict, and the court should have instructed the jury to acquit. Of course, if the jury had believed the testimony of appellant and his witnesses, there was no assault. But the state’s witness testified:

“My name is Floyd Holland. I live in Carthage. I was at the house of Stella Fletcher on the night of the 5th of August, this year, and was sitting on the front gallery of the house. Soon after I went to Stella’s house, Stella asked Preacher Anderson to go with Minnie Bowman to get a bucket of water. They both left the house, and in a few minutes both came running back and left Stella’s house. Immediately after that the defendant came running from around the house, and that just as the defendant started to get on the gallery he said, ‘God damn you, I will kill you.’ The defendant ran across the gallery and got hold of me, and we scuffled on the gallery for quite a while, and he tore my shirt nearly off, and I jerked from him, jumped off the gallery, and ran, and the defendant ran after me. As I jerked loose, I got cut here on my finger.”

If the jury believed this testimony, and evidently they did do so, it supports the verdict. The trial court must have also accepted it as true, or he would have granted a new trial, and we, at this distance, cannot say the state’s witness is unworthy of belief.

The judgment is affirmed.
      <§^jFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    DAVIS v. STATE.
    (No. 3765.)
    (Court of Criminal Appeals of Texas.
    Nov. 17, 1915.
    Rehearing Denied Dec. 22, 1915.)
    1. Homiciue <&wkey;30 — Murder in Commission or Other Oefense — Conspiracy—“Principal.”
    "Where defendant with three others went, disguised and armed with guns and whips, to homes of negroes to whip them, and after sundry whippings and shooting, in one house one of the party other than defendant shot and hilled a negress, the defendant was guilty as a principal though the shooting was .not actually planned, and may not have been contemplated, since the taking of firearms on the expedition raised a presumption of intention to use them in emergency.'
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 48-51; Dec. Dig. <&wkey;>30.
    For other definitions, see Words and Phrases, First and Second Series, Principal.]
    2. Criminal Law <&wkey;423 — Evidence of Ac-r complices — Admissibility.
    Where defendant and three others, armed with whips and guns and disguised, started out to whip negroes, and did whip and shoot at them, evidence of their acts and statements when together before the expedition is admissible to show the conspiracy, in a prosecution for murder committed during the raid, as is the evidence of other whippings on the same night.
    [Ed. Note» — For other cases, see Criminal Law, Cent". Dig. §§ 989-1001; Dec. Dig. <&wkey;> 423.]
    3. Criminal Law <&wkey;423 — Evidence—Acts of Accomplices — Existence of Conspiracy.
    Evidence that defendant with three others, all disguised, went out armed with guns and whips, whipped some negroes, and shot into houses of others, and shot and hilled a negress is sufficient to show a conspiracy, so that evidence of the acts and conduct of each is admissible in a prosecution for the murder, the act of one being the act of each or of all.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 989-1001; Dec. Dig. <S=> 423.]
    4. Homicide &wkey;>289 — Murder in Commission of Other . Offenses — Instructions.
    Where defendant and three others, armed with whips and guns and disguised, started out to whip negroes, and in the expedition shot and killed a negress, an instruction that if defendant, accused of the murder, did not know of the intent of the other to shoot and did not aid or encourage him in so doing, to acquit, or if they had a reasonable doubt as to those facts to acquit, was correct on the issue of defendant’s guilt, if the killing was on individual impulse of his coconspirator.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 594; Dee. Dig. &wkey;>289.]
    6. Homicide <&wkey;30lL-TRiAL — Instructions— Accident.
    Evidence that defendant with others went to deceased’s house and broke in, and that a person there reached for a shotgun when one of the party shot deceased, who sat between him and the other person, justifies an instruction on homicide by mistake or accident, such evidence raising the issue of whether the shot was directed at the person reaching for the gun.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 636; Dec. Dig. &wkey;>304.]
    6. Criminal Law <&wkey;814 — Instructions — Circumstantial Evidence.
    It is not necessary to charge on circumstantial evidence, where the evidence as to the actual commission of the offense by a certain person, and that he was aided by defendant, is direct and positive.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. &wkey;814.]
    Davidson, J., dissenting.
    Appeal from District Court, Jasper County; A. E. Davis, Judge.
    Harvey Davis was convicted of murder, and he appeals.
    Affirmed.
    See, also, 172 S. W. 978.
    J. T. Adams, of Orange, and Forse & Hamilton, of Newton, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

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

Tom Hughes testified that he, Walter Buckley, and Dock Hughes, on the night of the homicide, ate supper at the home of the mother of Dock Hughes, and after supper all three of them got in a buggy and went to appellant’s, Harvey Davis’, home. That appellant joined them, riding his horse, and they went to the home of June Thomas for the purpose of whipping June Thomas; that Dock Hughes carried a rifle, and appellant carried a shotgun. They all used a veil made of a mosquito bar to prevent detection. Not finding June Thomas at home, they went to the negro schoolhouse, where the negroes were assembled. That they carried a quart and a half of whisky with them and drank it up on their rounds that night. When they got near the negro schoolhouse, they hitched the mule and horse, and he, Walter Buckley, and appellant went back to June Thomas’ house. That while gone they heard some shooting, and when they returned found Dock Plughes near the schoolhouse laughing. After this they shot into the schoolhouse and shot out the window lights. They then went back to the buggy, got a drink, all four got in the buggy and drove over to Clark’s, near the schoolhouse, and appellant went in and whipped Clark with a mule whip. After this they shot into Clark’s house three or four times, and then went on to Word Stepney’s. Not finding Word Stepney, they all then went to the home of Jemes Parmer, and while there they made both Parmer and Blzie McCain get down on their knees and pray, and afterwards whipped Elzie McCain; that they went over to the home of Joe Kellum for the purpose of whipping Joe. Witness and Walter Buckley drove the buggy, and Dock Hughes and appellant walked, and while witness and Walter Buckley were tying the m.ule, appellant and Dock Hughes went to the door of Joe Helium’s house, and appellant called Joe several times. They placed witness at the end of the gallery and Walter Buckley at the back door. That appellant called Joe and told him to come out; his horse had gotten loose, and he wanted him, Joe, to help catch his horse. Getting no response, appellant and Dock Hughes motioned witness to come to them, and said appellant was to kick the door open, witness to strike a match, and he and Dock go in the house. That appellant kicked the door open, and witness and Dock went inside. That when they got inside, a woman was sitting on the bed in her nightclothes, and he asked her for some matches, she replying they had no matches. He then asked for a lamp, and she told them they had no lamp. All this time Dock Hughes had his gun pointing in the direction of the woman. Witness says, by the light of the match in his hand, he saw a lamp and started to light it, the necessary inference being to hunt for Joe Kellum. As he started to light the lamp a gun fired (which was evidently fired by Joe Kellum), and Dock Hughes then shot three times killing the woman.

One of the main contentions of appellant is that the killing of the woman was not within the design of the parties, and although he was present and kicked open the door for Dock and Tom Hughes to enter the house, he could not be guilty of the murder of the woman. If this is a sound proposition of law, of course this would settle the case, but we do not think it sound. In the ease of Gonzales v. State, 171 S. W. 1148, and Serrato v. State, 171 S. W. 1133, we had occasion to discuss the question here raised, and quoted approvingly the law as laid down by this court in Kirby v. State, 23 Tex. App. 23, 5 S. W. 171, Judge White rendering the opinion:

“According to this statement or evidence it is clear that the parties had entered into an agreement and plan by which to effect their escape from jail, a part of which was as to the method by which Cannon was to secure and detain Glazner in the corridor. It is true that appellant says nothing about an understanding that Glazner was to be killed, or even that any bodily injury was to be inflicted upon him further than his confinement or imprisonment after he had entered the jail; but, as part of the plan, and doubtless, as considered by them, a most important part, they had procured and prepared for use the piece of iron with which the murder was committed, and appellant tells us that he himself, after it was prepared, hid the same under the water-closet on the morning-before it was used with such deadly effect by Cannon. If not to be used in any contingency, why prepare and hide such a weapon1? Here we have established by the statement the conspiracy to effect the escape, and the preparation of a deadly instrument to be used, it may be, only if occasion required. True, that at the very time it was used appellant and Brown were so situated that it was impossible they could afford Cannon any direct assistance, or, in fact, do more, perhaps, than encourage him by words and gestures, even if they did so encourage him, of which fact there is no positive proof.
“Under such circumstances, and without direct proof of encouragement, the question is, could appellant be held and considered in law a principal in the crime committed by Cannon? It is declared that ‘all are principals who are guilty of acting together in the commission of an offense.’ Penal Code, art. 74. And ‘all persons who shall engage in procuring aid, arms or moans of any kind to assist in the commission of an offense whilst others are executing an unlawful act,’ are principals. Penal Code, art. 76. And again, any person who advises or agrees to the commission of an offense, and who is present when .the same is committed, is a principal thereto) whether he aids or not in the illegal act. Penal Code, art. 78.
“Thus it will be seen that, to render a party equally guilty and responsible with the real perpetrator, all that is required is that he be present, consenting, and that the act was the result of a common design. It is true his bare presence is not sufficient, nor is his failure to give alarm; neither is his inactive and supposed concealment of the offense. Burrell v. State, 18 Tex. 713; Truitt v. State, 8 Tex. App. 148; Tullis v. State, 41 Tex. 598; Ring v. State, 42 Tex. 282. But such significant facts as his presence in connection with his companionship, his conduct at, before and after the commission of the act, are potent circumstances from which participancy may be inferred. Id. The true test is, did the parties act together, and was the act done in pursuance of a common design and purpose in which their minds had agreed? Welsh v. State, 3 Tex. App. 413; Wells v. State, 4 Tex. App. 20; Scales v. State, 7 Tex. App. 361; Corn v. State, 41 Tex. 301; Smith v. State, 21 Tex. App. 107 [17 S. W. 552].
“There can be no question as to the common design and conspiracy to effect an escape from jail, and the fact is also incontestable that the murder was committed by Cannon in pursuance of this common purpose. But, while this is so, it is insisted that the conspiracy only extended to a purpose to confine Glazner in order that the escape might be accomplished — that the evidence fails to show that appellant and Brown ever contemplated, much less agreed to, his murder or the infliction of any bodily harm upon him, and that the fatal blows dealt him by Cannon causing death were the result of an independent act upon the part of Cannon without their knowledge or concurrence, and without the ability on their part even to prevent it.
“ ‘The joint responsibility of parties for each other’s misconduct rests on the principle that when an act is committed by a body of men engaged in a common purpose, such act is treated as if specifically committed by each individual. It should be observed, however, that while parties are responsible for collateral acts growing out of the general design, they are not responsible for independent acts growing out of the particular malice of individuals. Thus, if one party of his own head turn aside to commit a felony foreign to the original design, his companions do not participate in his guilt.’ Whart. on Horn. §§ 201, 202; Mercersmith v. State, 8 Tex. App. 211; Stevenson v. State, 17 Tex. App. 619. But it is equally as well settled that ‘all combining to commit an offense to which homicide is incident are principals in homicide. As where persons combine to stand by one another in a breach of the peace, with a general resolution to resist all opposers, and in the execution of their design a murder is committed, all of the company are equally principals in the murder, though at the time of the fact some of them were at such a distance as to be out of view, if the murder be in the furtherance of the common design. ♦ * * Malice in such a killing may be inferred as a presumption of fact from the nature of the design and the character of the preparation; whether the deceased fell by the hand of the accused or otherwise is immaterial. * * * It is only where the causes leading to the homicide have no connection with the common object that the responsibility for such homicide attaches alone to its actual perpetrator.’ Whart. on Horn. § 338.
“As stated, we have in the evidence before us a common design to escape from jail, preparations to effect that purpose, a deadly weapon prepared as a means to be used if necessary in the accomplishment of the common purpose, the use of the deadly weapon by one of the parties in endeavoring to carry out the common design. Such a homicide committed under such circumstances, is not a collateral, independent act of the actual perpetrator, but is the act of all, because it was an act directly incident to and growing out of the common design of all.
“If, as is clearly proven, part of the common design was to imprison Glazner within the jail, and detain him therein without his consent until the parties had effected their escape, then such detention would be unlawful and constitute what in our Code is denominated ‘false imprisonment’ (Penal Code, art. 513), for which they would be liable to punishment by a fine not exceeding five hundred dollars and confinement in the county jail not exceeding one year (Id. art. 518). Mr. Bishop says ‘a man may he guilty of a wrong which he did not specifically intend, if it came naturally or even accidentally froni some other specific or general evil purpose. When, therefore, persons combine to do an unlawful thing, if the act of one proceeding, according to the common plan, terminates in a criminal result, though not the particular result meant, all are liable.-’ 1 Bish. Crim. L. (7th Ed.) § 636.
“In Mereersmith’s Case, 8 Texas Court of Appeals, supra, it was said where two persons go out for the common purpose of robbing a third person, and one of them in pursuit of such common purpose kill such third person under such circumstances as to make it murder in him who does the act, then it is murder in the other. * * * Nor is it necessary that a common guilty purpose of resisting to the death any person who should endeavor to apprehend them must have been formed when the parties went out with the common design of committing the unlawful act, to render all principals in a murder by one of them whilst making such resistance.’ ”

This opinion has been quoted approvingly in Phillips v. State, 26 Tex. App. 247, 9 S. W. 557, 8 Am. St. Rep. 471; Bowers v. State, 24 Tex. App. 550, 7 S. W. 247, 5 Am. St. Rep. 901; Kipper v. State, 45 Tex. Cr. R. 389, 77 S. W. 611.

As said by Judge White in the Kirby Case, supra, if not to be used in ease of emergency, why prepare and hide a piece of iron with which the murder was committed? So we may say in this case, if not to be used in any emergency, why did appellant take along with him that night a shotgun and Hughes a rifle, on their whitecapping expedition? The fact they carried these weapons, on a trip which they say was to only whip the negroes, evidenced they contemplated it might become necessary to use them, and when they thought it necessary did use them, and this negress who had done them no harm yielded up her life. If they had no thought or intent to kill, why did they fire into the echoolhouse with reckless disregard of whom they might kill, and why did they shoot into the house of the negro Clark?

Rev. L. C. Dowden testified that he was present at Preston Hughes’ store; that Dock Hughes, Tom Hughes and Walter Buckley were also there, when appellant rode up. This was about noon of the day the killing occurred at night. That he heard a conversation between appellant and Dock Hughes. That Dock Hughes invited appellant to get down, when appellant replied he was in a hurry, remarking, “I have got to get a negro,” saying he had been to a hunt a negro. Dock Hughes replied, “Well, I have got to get one, too.” That appellant got down and they walked off some steps and talked, witness not hearing the conversation. The state then proved that Buckley, Tom and Dock Hughes all ate supper together that night, and after supper they went to appellant’s and he joined them, and they went to a negro’s house to whip the negro. Not finding him at home, they went to the schoolhouse, and there shot into the house, running the negroes off. That they went to several negro houses, finding some at home and some absent; that they whipped McCain and Clark and shot into Clark’s house, the last house visited being that of Joe Kellum, where the woman was killed. Joe Kellum, among other things, testified, that somebody came to his home that night between 12 and 1 o’clock; that he and his wife had gone to bed.

“The first I knew of it, there was a man calling me at the front door, calling, ‘Joe, Joe.’ From the sound of his voice, he seemed to be on the front gallery, at the front door on the gallery, and he called me ‘Joe, Joe,’ like that. I didn’t answer him .the first time or two, and about the third or fourth time he called, I said, ‘Who is that?’ and he says ‘Harvey Davis; get up and open the door.’ I started to get up, and as I got up I heard some one going around the house, going around the end the chimney was in. When I heard this fellow going around the house, why I ceased to answer Mr. Davis; I was kinder listening to him walking around the house. They went around to the back door. There was a back door to the house. There was only one door on the back of the house. I said I quit saying anything to Mr. Davis then. The one that went around the house stayed around there a minute or so. This man at the front was still calling, and this other one came right on back from around the house, and said, ‘Tell him your horse is loose, and you want him to help you catch him.’ The man that came back from around the house said that. I heard him walking. I heard him say, ‘Tell him your horse is loose, and you want him to help you catch him.’ Then this one at the door told me that, ‘My horse is loose and I want you to help me catch him.’ I said, T would like the best in the world, Mr. Davis, to go and assist you in catching your horse, but my wife is sick, and I haven’t got any one to leave bore with her.’ He says, ‘Open the door, if you don’t I am going to shoot through it,’ and about that time it seemed like some one else come up on the gallery where this same man was at; and then when he said ‘Open the door, if you don’t I am going to shoot through it,’ I didn’t say anything more. I was afraid to say anything more, and then they began forcing at the door. The door was fastened with some wooden latches. There was four latches on the facing, but there wasn’t but three latches on the door that night. I had the door just fastened with three on the side. Thej' were small latches and worked on a nail. You would just turn it around when .you wanted to latch it. Then they began forcing at the door, and they kept forcing at the door until they finally forced it open, and as they forced it open, I thought X would sorter hide from them. As they were calling me, I thought I would sorter hide from them and they would come in and not find me. I had been sitting on the bed from the time I heard him going around the house until I heard the door open. I got over between the head of the bedstead and the wall. This (indicating) was the head of the bedstead here. I don’t know how many came in the house. There must have been more than one from the noise they made. It sounded like more than one from the noise they made on the floor. As I got up off the bed my wife got off the bed she was on and come over to the bed where I was at. There was no light in the house. As the door was. forced open, there was a light struck, as well as I could tell from the reflection of the light, somewhere near the door, inside of the house, but I was afraid to look out to see who had the light, anything like that. X was trying to keep hid. As the light struck in the house, about that time, my wife says, ‘I wish you gentlemen, as I am dressed in my nightclothes, I wish you would please go out of the house.’ They kept on calling me, and I was trying to keep hid. I thought they would go out of the house and that would be all, and I remained there right behind the bed until the light began to go out and when the light began to go out, the shooting began in the house. Then I remained on laying there until the shooting began, and I reached up in the rack over my head and got a shotgun I had up there, and I just fired it off in the house, as I laid there behind the bed. I shot on the side of the bed. X stuck it out from the side of the bed around the end of it and shot.”

Appellant in various bills of exception objected to all the testimony about whipping other negroes, visiting other negro houses, and what was said by any of the parties except appellant, on the ground that a conspiracy must be first shown before the acts and declarations of other parties are admissible, and on the ground that the visits to the other houses and whipping of other negroes, and shooting into other houses were separate and distinct offenses, and not admissible in evidence. On proof of conspiracy Judge White early laid down the rule which has always prevailed in this court:

“The ancient doctrine that a conspiracy must first be established ipso facto before proof of acts and declarations of the individual conspirators are admissible against each other, is now exploded. The rule as it now exists is stated in the case of Cox et al. v. State, 8 Tex. App. 254 [34 Am. Rep. 746], as follows: ‘Ordinarily, when the acts and declarations of one cocon-spirator are offered in evidence against another coconspirator the conspiracy should itself be first established prima facie, and to the satisfaction of the judge of the court trying the cause; but this cannot always be required. It cannot well be required when the proof depends upon a vast amount of circumstantial evidence —a vast number of isolated and independent facts. And in any case where such acts and declarations are introduced in evidence, and the whole of the evidence introduced 9n the trial, taken together, shows that a conspiracy actually existed, it will be considered immaterial whether the conspiracy was established before or after the introduction of such acts and declarations.’ ” Smith v. State, 21 Tex. App. 107, 17 S. W. 552; Moore v. State, 7 Tex. App. 14; Davis v. State, 9 Tex. App. 365; Kennedy v. State, 19 Tex. App. 633; Clark v. State, 28 Tex. App. 189, 12 S. W. 729, 19 Am. St. Rep. 817; Stevens v. State, 42 Tex. Cr. R. 154, 59 S. W. 545; Cain v. State, 42 Tex. Cr. R. 210, 59 S. W 275; Proctor v. State, 54 Tex. Cr. R. 254, 112 S. W. 770.

Only the acts, conduct and declarations of appellant, Dock Hughes, Tom Hughes and Walter Buckley were admitted, and they are shown to have been constantly together from the time they met after supper, and masked themselves with mosquito netting, until the woman was killed, and at this time Walter Buckley was at the back door to see that Joe Kellum did not escape that way, appellant kicked in the front door, and Dock Hughes and Tom Hughes rushed into the room where the homicide occurred. A conspiracy is shown to at least go and. whip the negroes that night, to which all gave their assent. They go together, carry deadly weapons with them; attempt to hide their identity ; shoot into houses, with a reckless disregard of human life, before this negro woman is killed, and the court properly admitted in evidence the acts, conduct, and declarations of each of the four conspirators on this occasion. What all did under such circumstances, in furtherance of the common design, would in law be the act of each one of them.

But appellant insists the court erred in not instructing the jury that if Dock Hughes killed the woman upon an independent impulse of his own, he should be acquitted. Appellant did not testify, and, therefore, we have no declaration from him nor any other witness that would absolve him, and, if such an issue is raised by the evidence, it is raised because the state could not show more than that they agreed to go down into this quarter and whip some negroes that night; that they sought to conceal their identity by covering their faces with netting; that they carried a Winchester and a shotgun; that they did whip negroes, and fired their guns into houses before getting to Joe Kellum’s, instigating a reign of terror in that negro settlement, and then show the conduct of the parties at the house of Joe ICellum, testified to by Tom Hughes and Joe Kellum, and where an inoffensive negro woman was killed while sitting on her bed. But if by reason of lack of testimony the issue may have been raised that Dock Hughes killed the woman upon an independent motive of his own, of which appellant was unaware, and to which he did not give his assent, we think such issue was fully covered by the court’s charge. He instructed the jury:

“All persons are principals who are guilty of acting together in the commission of an offense. When an offense has been actually committed by one or more persons, the true criterion for determining who are principals is, did the parties act together in the commission of the offense ; was the act done in the pursuance of a common intent and in pursuance of a previously formed design in which the minds of all united and concurred? If so, then the law is that all are alike guilty, provided the offense was actually committed during the existence and in the execution of the common design and intent of all such persons. The mere fact that a person is present when an offense is_ committed does not constitute or make him a principal, but he must aid by acts or encourage by words or gestures those actually engaged in the commission of the unlawful act in pursuance of a common design and purpose to commit the offense.
“And in this case if you believe from the evidence beyond a reasonable doubt that the defendant, Harvey Davis, was present at the time Grace Kellum was killed, if she was killed, and if you believe from the evidence beyond a reasonable doubt that Dock Hughes, Walter Buckley and Tom Hughes, Jr., or either of them, killed Grace Kellum, if she was killed, yet, if you find from the evidence, that the defendant, Harvey Davis, did not aid, or encourage the said Dock Hughes, Walter Blackley, or Tom Hughes, .Jr.-, or either of them, to kill Joe Kel-lum or Grace Kellum, by any word or act or gesture, and did not know the unlawful intention, if any, of the said Dock Hughes, Walter Buckley, and Tom Hughes, Jr., or either of them, to kill Grace Kellum or Joe Kellum, or to commit some unlawful act which might lead in its natural or probable consequences to the killing of Joe Kellum or Grace Kellum, or if you have a reasonable doubt about this, then you will find the defendant, Harvey Davis, not guilty.”

This in plain language tells the jury that if Tom Hughes, Dock Hughes or Walter Buckley killed the woman, and appellant did not know the unlawful intention, if any, of the above-named men, or either of them, to kill, to acquit, and if he did not aid or encourage them in the act to acquit. But appellant says this shifted the burden on Mm to prove these facts, as the court required the jury to find that he did not, etc., before they would be authorized to acquit. This -charge might be susceptible of this criticism if it were not for the concluding part of the charge, where the court plainly told the jury, “or if you have a reasonable doubt” about such matter you will acquit. A charge similar to .the above, where it failed to apply the doctrine of reasonable doubt to such state of facts, was criticized, in Johnson v. State, 29 Tex. App. 150, 158 S. W. 647, hut in that case it was held only that the reasonable doubt must be applied to that state of facts, as well as to others, and this the court did in the charge quoted above. Powell v. State, 28 Tex. App. 398, 13 S. W. 599; Edens v. State, 41 Tex. Cr. R. 522, 55 S. W. 816.

It was not necessary to define the word “corroborate.” Its meaning is too well understood, and the charge on accomplice testimony is clothed in language frequently approved by this court.

Appellant also contends that the court erred in instructing the jury on killing “by mistake or accident,” he contending there is no evidence to show that the killing was by mistake or accident. The evidence, and all the evidence, is that the parties went to the Kellum residence after Joe Kellum and not after his wife, and according to Tom Hughes’ testimony Joe Kellum fired first, and, if this is true,- the circumstances would all tend to show that Dock Hughes was more than probably shooting at the man who shot him, and whom they had gone to and broke into the house to get. Again, Joe Kellum says that Dock Hughes fired first; that he had gotten behind the bed to keep them from finding him, but about this time he reached for his gun, and if Dock Hughes saw him reaching for his gun, it is more than probable that he shot at Joe Kellum, when he killed the woman. At all events, the evidence raised the issue that Dock Hughes may have been shooting at Joe Kellum when the woman was killed, and this exception to the charge is not well taken.

It was not necessary to charge on circumstantial evidence, as there is direct and positive testimony as to who killed Grace Kellum, and direct and positive testimony that appellant kicked in the door, and was acting with the person who fired the shot, in breaking in the house at least.

The other special charges requested, in the main, are not the law as applicable to the evidence adduced on this trial, and in so far as they state correct propositions of law were fully covered by the charge as given.

The judgment is affirmed.

DAVIDSON, J., dissents.
      (S^>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes