source: Caselaw Access Project

author: PRENDERGAST, P. J. HARPER, J. DAYIDSON, J. MORROW, J.

license: Public Domain

text:
    HIPPLE v. STATE.
    (No. 4298.)
    (Court of Criminal Appeals of Texas.
    Dec. 20, 1916.
    On Motion for Rehearing, Feb. 7, 1917.)
    1. Criminal Daw <&wkey;183 — Former Jeopardy —Discharge of Jury— Consent.
    Neither consent of counsel of accused to discharge of jury after jeopardy attaches, nor failure of accused to protest, will bar a plea of former jeopardy on subsequent trial.
    [Ed. Note. — For o-tlier eases, see Criminal Law, Cent. Dig. § 335.1
    2. Criminal Law <&wkey;183 — Continuance — Discharge of Jury — Jeopardy.
    Ruling that three year old witness was incompetent was not such an unexpected occurrence, within Code Or. Proc. 1911, art. 616, as to warrant a continuance at trial and a discharge of jury, on state’s application, without accused’s consent nor does a recital in interlocutory judgment, of accused’s consent, bar a plea of former jeopardy.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 335.1
    Prendergast, P. J., dissenting.
    Appeal from District Court, Galveston County; Clay S. Briggs, Judge.
    C. Hippie was convicted of rape, and he appeals.
    Reversed.
    W. E. Price, of Galveston, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

On May 16, 1916, appellant was indicted for an attempt to rape a little girl three years old, tried and convicted on October 11, 1916, with his punishment assessed at the lowest prescribed by law. On June 16th, the case was called for trial, both parties announced ready, a jury was duly impaneled, sworn, etc., the indictment read, appellant pleaded not guilty, and the witnesses sworn and placed under the rule. The trial judge appointed Mr. Price, a practicing attorney of the court, to prepare and present appellant’s plea for a suspended sentence, “and who with defendant’s consent acted generally as his counsel’’ thereafter in the case. The state then placed the little girl on the stand, and she was examined on her direct examination by the state’s attorney. The appellant’s ' attorney cross-examined her, and then challenged her competency to testify. The judge then examined her, and thereupon held she was incompetent to testify. What her testimony was, is in no way shown by the record herein. The state then claimed surprise, and the solemn judgment of the court on this matter at the time adjudged was:

“Thereupon leave was granted the state to withdraw its announcement of ready with the consent of the defendant, and cause was continued by consent of state and defendant, and the jury discharged.”

At the next term, on October 11th, the case was tried, which resulted in his conviction, as stated. At this trial he pleaded former jeopardy, alleging substantially the facts above shown, and that when the court held said little girl incompetent to testify, the county attorney then “withdrew his announcement of ready for trial and ashed that the cause be continued until the next term of court. The court thereupon inquired if the defendant had any objection, and the aforesaid defendant’s counsel, Mr. Price, replied that he had none. The defendant stood mute, neither objecting nor consenting in person. Whereupon the court discharged the jury and continued the cause.” The court solemnly adjudged at the time as quoted above. The statute (article 616, C. C. P.) expressly prescribes:

“A continuance may be granted on the application of the state or defendant after the trial has commenced, when it is made to appear to the satisfaction of the court that by some unexpected occurrence since the trial commenced, which no reasonable diligence could have anticipated, the applicant is so taken by surprise that a fair trial cannot he had, or the trial may be postponed to a subsequent day of the term.”

The trial court acted strictly under, and in accordance with, that statute. It has been in force and effect at least ever since the Codes were first adopted in 1856, and has been re-enacted by the Legislature every time the statutes have been revised since then. It specifically shows on its face that the object of the law, and the Legislature, was, that each side, the state as well as the accused, should have a fair trial, and if an unexpected occasion arose, at any time after the trial commenced, and befdre its conclusion, whereby it should be made to appear to the satisfaction of the trial court that the applicant, whether the state or defendant— the state in this instance — was so taken by surprise that a fair trial could not be had, to then grant a continuance. And under such circumstances jeopardy would not, and could not, attach, and the action of the trial judge should and must be sustained. When the contingency arises which makes it proper for the trial judge in his judicial discretion to grant a continuance, under this statute, it would be wholly unnecessary for the defendant to consent. In fact, it could legally be granted over and against his active and express opposition, in which case jeopardy would not attach nor apply. In this instance, however, as solemnly adjudicated by the court at the time between the state and appellant, the state withdrew its announcement of ready, “with the consent of defendant, and cause was continued by consent of state and defendant.”

We have another statute (article 757, C. C. P.), which provides that, even after all the trial has been had except the rendition of the verdict:

“If, after the retirement of the jury, in a felony case, any one of them becomes so sick as to prevent the continuance of his duty, or any accident or circumstance occurs to prevent their being kept together, the jury may be discharged.”

This article has been expressly held constitutional . by this court, and not in conflict with the jeopardy clause (article 1, § 14) of our Constitution, in Woodward v. State, 42 Tex. Cr. R. 193, 58 S. W. 135. In the opinion in that case many authorities sustaining said holding are cited. That decision, and authorities, are clearly applicable to article 616, C. C. P., above quoted.

As to whether or not appellant’s said plea of jeopardy raised such an issue of fact as required the trial judge to submit the question to the jury, and prevented him from passing on it as a question of law, will now be discussed. The substance in full of the plea is given above. It is unnecessary to repeat it. The state by its answer first specially excepted thereto as follows:

“Because said pleading on its face shows that the court permitted the state to withdraw its motion of ready for trial, after the complaining witness had broken down on the witness stand and been declared incompetent to testify as a witness, and continued the cause, which was within the discretion of the court, and said pleading states no fact^ or facts, showing any abuse of such discretion on the part of the court”

—and then next generally demurred to it as follows:

“Now comes the state by her county attorney and demur and except to the plea of former jeopardy filed herein, and say the same' is wholly insufficient in law, and prays that same be not allowed.”

The court expressly sustained both. Appellant did not amend his plea in any way, nor ask to do so, but merely excepted. The plea avers that upon the judge’s ruling said little girl incompetent to testify, the county attorney withdrew his announcement of ready for trial, and asked that the cause be continued until the next term of court. The court thereupon inquired if the defendant had any objection, and his attorney replied that he (defendant) had none. The court did not inquire if the attorney had any objection, but if the defendant had any. The attorney did not reply that he, the attorney, had none, but that he, the defendant, had none. The defendant was present and necessarily heard the judge’s inquiry of him, not of his attorney, and necessarily heard his attorney’s reply, for him, that he, the defendant, had none. In no way by his plea did he aver that he did not hear, or did not know. He replied by and through his attorney that he had no objection. The fact, if so, that he “stood mute, neither objecting nor consenting in person,” under the circumstances, cannot do away with the fact that he announced to the court at the time, when the court inquired of him if he had any objection, by his attorney, “that he had none.” Nor did he, in his plea, aver that he did not consent, nor that his attorney had no authority to tell the judge that he, defendant, had no objection. The judge, in his presence and hearing, immediately, solemnly adjudged between him and the state:

“Thereupon leave was granted the state to withdraw its announcement of ready, with the consent of the defendant, and cause was continued, by consent of state and defendant, and the jury was discharged.”

To which he makes no objection. It is settled in this state by express statute (article 22, C. C. P.) that the defendant in a criminal case for any offense may waive any right secured to him by law except a trial by jury in a felony case. It is also well settled by the decisions of this state that a defendant can waive former jeopardy, and he may do so in many different ways. Johnson v. State, 26 Tex. App. 631, 10 S. W. 235. Many other cases could also be cited. It is also well - settled by a large number of decisions that, in matters of former jeopardy, the court can and must take judicial knowledge of all the proceedings in the cause pertaining thereto, both those that occurred at previous terms as well as what occurred when the trial on the main case was had and conviction resulted. In Schindler v. State, 17 Tex. App. 412, this court, when former jeopardy was pleaded, held:

“The law vests in the trial judge a discretion, under certain circumstances, to discharge a jury even in a felony case, .without the consent of the defendant, and the exercise of such discretion will not be revised by this court, and will not be held to constitute jeopardy, except when it is made clearly to appear that such discretion has been abused.”

In O’Connor v. State, 28 Tex. App. 290, 13 S. W. 14, the appellant therein pleaded former jeopardy, alleging that at a former term he was put upon trial and the jury was discharged by the court, without his consent and over his protest and without legal cause. The court said (28 Tex. App. 291, 13 S. W. 15):

“Jeopardy is a special defense, and the burden of establishing it clearly and satisfactorily rests upon the defendant.”

Then, among other things, that it devolved upon the defendant to prove:

“(3) That, without his consent, and without legal cause, the trial court discharged the jury trying him before said jury had rendered a verdict in said cause. Until these essentials of jeopardy were established affirmatively by the defendant, the presumption would prevail that the trial court in discharging the jury acted upon legal cause, and did not abuse its discretion” (citing several cases).

Of course, it being necessary to prove these facts, it was also necessary as a basis therefor that the averments of the plea should so allege, as-stated in that case. In this case, ah shown above, no such allegations were made, and the plea was dqfective in substance because thereof, and' both the special and general demurrers of the state herein presented such question. It was also held in Carroll v. State, 50 Tex. Cr. R. 488, 98 S. W. 859, 123 Am. St. Rep. 851, 14 Ann. Cas. 426, that a defendant cannot plead jeopardy where the jury before which he was first on trial was discharged on his motion or with his consent (citing a large number of authorities). See, also, Johnson v. State, 73 Tex. Cr. R. 133, 164 S. W. 834. In Escareno v. State, 16 Tex. App. 85, which was a case wherein the death penalty was .assessed and the judgment affirmed, Judge Hurt, writing the opinion -of the court, stated, in substance and effect, that the question was raised that the appellant in that case was not present when his motion for a new trial was acted upon and overruled by the trial judge. Judge Hurt said (16 Tex. App. 92):

“But suppose the record shows affirmatively that he was not present when his motion for new trial was overruled, in the assignment of errors it is conceded that this right was waived by his counsel. The question then is, is defendant bound by this waiver? What is the presumption? It is that his counsel was authorized by defendant to make the waiver, and that defendant is bound by it unless he shows that in fact he did not so authorize it.”

There is no statute of this state which prescribes that an accused must, in person, expressly consent to what the record conclusively shows appellant did consent to in this case, as announced by his attorney in his presence and hearing, and thereupon unquestionably acted upon by the court in his presence and hearing; nor is there any statute which prescribes this by amplication. Neither is there any decision of this court holding any .such thing. Nor is there any decision of this court which can be found which holds that, under the circumstances as stated in this case, where the defendant in person remains mute, he is not bound by such waiver and agreement when made as shown herein. Neither of the cases of Early v. State, 1 Tex. App. 248, 28 Am. Rep. 409, McDuff v. State, 4 Tex. App. 58, Hill v. State, 10 Tex. App. 618, Bell v. State, 2 Tex. App. 215, 28 Am. Rep. 429, Pizano v. State, 20 Tex. App. 139, 54 Am. Rep. 511, and Sterling v. State, 15 Tex. App. 249, hold any such doctrine, as a reading of each case will demonstrate. In Eoff v. State, 75 Tex. Cr. R. 244, 170 S. W. 707, this court held that where appellant’s attorney made an agreement in open court in the appellant’s presence and hearing, and it was introduced in. evidence without objection by him on the trial, the law would imply his consent thereto. To the same effect is Sutton v. State, 76 Tex. Cr. R. 70, 172 S. W. 791. The court, in McDuff v. State, 4 Tex. App. 61, laid down the true rule, which is applicable in this case, saying:

“The general rule is that whatever a person can do himself, sui juris, he can do by an attorney. Parker v. Poole, 12 Tex. 86. And this rule unquestionably applies in cases of attorneys appointed by the court to represent a party, as well as those cases where the party employs his attorney himself. Ordinarily, the action of the attorney, as the representative of his client in the conduct of the cause, will, and should, be binding upon the client in all matters where by law the client is not specially required to act for himself.”

In this McDuff Case, however, this state of fact was uneontrovertibly shown: When the indictment was found McDuff was not on bail but in jail, and he was not able to employ counsel. On September 17th the judge thereupon appointed two attorneys, Dake and Graves, to represent him. Said attorneys, on the next day, “without the knowledge or consent of McDuff, waived a copy of the indictment,” and then on that day they declined to represent him, stating to the court “that they were so prejudiced against him they could not justly represent him,” and the court excused them. On September 27th the court appointed another attorney, Mr. Plowman, to represent him. Neither McDuff nor that attorney waived a copy of the indictment. When placed on trial, September 29th, he refused to plead, because he had not been served with a copy of the indictment, and moved and prayed the court to strike out said waiver by Dake and Graves, “because it was made without the knowledge or consent” of McDuff. The court overruled this, and forced him to trial then. The court, after announcing the rule above quoted, said, “the reason and justice of this rule must, however, in the very nature of things, sometimes yield to the peculiar circumstances and surroundings of the case,” and correctly held under the circumstances and surroundings of the case, as stated above, that McDuff was not bound by said waiver of Dake and Graves. The court then cited and discussed the statutes requiring that an accused shall be served with a copy of the indictment, and then be allowed two days to plead before he can be forced to trial, saying, with reference to the facts of that case, that the client cannot “be absolutely bound by the act of his attorney, when the act is both prejudicial to his rights and in contravention of known and well-established principles of law.” But the instant case is nothing like said McDuff Case; in fact,' is the very reverse of it.

It is the universal practice in this state that an accused on the trial, and in all matters pertaining thereto, acts by and through his attorney, and he does not act himself, and where not positively forbidden by statute the acts and want of acts by the attorney in behalf of his client in his presence and hearing are binding and conclusive upon him unless he personally at the time repudiates such action, or want of action. Trials could not be conducted otherwise, and are not conducted otherwise.

Therefore the court committed no error in sustaining the state’s» exceptions, special and general, to appellant’s said plea and this judgment should be affirmed; and it is so ordered.

HARPER, J.

As the judgment of the court recites that the case Was withdrawn from the jury at the former term and continued “with the consent of the defendant,” and no exception was reserved to the action of the court, I agree to the affirmance of this case. In the case of Carroll v. State, 50 Tex. Cr. R. 488, 98 S. W. 859, 123 Am. St. Rep. 851, 14 Ann. Cas. 426, it is specifically held that where the jury is discharged with the consent of defendant, the plea of former jeopardy is of no avail. The authorities are there collated.

DAYIDSON, J.

(dissenting). In June appellant was placed upon his trial. While prosecutrix was testifying the court held that on account of her extreme youth, she being about three years of age, she was not a competent witness. The state then moved the case be withdrawn from the jury and continued. Appellant’s counsel, who had been appointed by the court, stated he had no objection. The following October appellant was placed on trial again under the same indictment, and pleaded jeopardy, setting up the facts. This plea, in substance, alleges that appellant cannot be further legally prosecuted because he had already once before been put in jeopardy for the identical offense; that on the 16th day of June, 1916, this case was called for trial, a jury legally impaneled and sworn, and the defendant was called upon to plead before the jury, and he did enter a plea of not guilty. The witnesses were sworn and placed under the rule;- the complaining witness was sworn and took the stand, and her direct examination was conducted by special prosecuting counsel assisting the state, who, after completing his direct examination of prosecuting witness, then presented her to appellant’s counsel, appointed by the court, which counsel cross-examined the witness, and, being dissatisfied with the nature of the answers given by her to the propounded questions, challenged the qualifications and competency of the witness. Thereupon the court questioned the witness and ruled that she was incompetent to testify. The county attorney of Galveston county withdrew his announcement of ready for trial, and asked that the cause be continued until the next term of court. The court thereupon, inquired if the defendant had any objection, and the aforesaid defendant’s counsel, Mr. W. E. Price, replied that he had none. The defendant stood mute, neither objecting nor consenting in person, whereupon the court discharged the jury and continued the cause.

The premises considered, the defendant now alleges and avers that by reason of the discharge of the jury before verdict without his consent in the manner and form as above shown, he has once before been placed in jeopardy for this offense, for which he is now again being prosecuted, and that he should be discharged from further prosecution and liability.

A demurrer by the county attorney states that the pleading on its face shows that the court permitted the state to withdraw its motion of ready for trial, after the complaining witness had broken down on the witness stand and been declared incompetent to testify as a witness, and continued the cause, which was within the discretion of the court, and said pleading states no fact, or facts, showing any abuse of such discretion on the part of the court. And further demurring the county attorney excepts to the plea of former jeopardy, and says the same is wholly insufficient in law, and prays that same be not allowed.

A demurrer admits the verity of the facts pleaded, but contends they set up no cause of action. All the facts stated in the plea of jeopardy must be considered true in testing the effect of the demurrer. So considered, does the jeopardy plea present that question so as to require its submission to the jury? The writer is of opinion it does, and, if found to be as alleged, that appellant should have a verdict. It seems to be the settled iaw that counsel for the accused cannot waive any of his material rights; that this must be done by the defendant in person. The authorities seem to be harmonious. Early v. State, 1 Tex. App. 248, 28 Am. Rep. 409; McDuff v. State, 4 Tex. App. 58; Hill v. State, 10 Tex. App. 618; Pizano v. State, 20 Tex. App. 139, 54 Am. Rep. 511; Bell v. State, 2 Tex. App. 216, 28 Am. Rep. 429; Sterling v. State, 15 Tex. App. 252. See, also, White’s Ann. Crim. Proc. p. 29, for collation of authorities, and Vernon’s Ann. Crim. Proc. page 26. This was not done by defendant as admitted by the state in the demurrer and upheld by the court in sustaining the demurrer. Vernon in his Criminal Procedure thus states the rule:

“There is really, no manner in which an attorney can absolutely bind his defendant client to his prejudice and against the general principles of law” (citing Bell v. State, 2 Tex. App. 216, 28 Am. Rep. 429; McDuff v. State, 4 Tex. App. 58).

Some of the cited cases expressly hold that if the defendant in person remains mute, it is not a waiver on his part, although .counsel does waive. If the. facts are as stated in the plea, appellant did not waive his right set up in this plea of jeopardy, and his counsel could not do so. That an attorney cannot waive any material right of his client is well settled, if such thing can be settled. Illustrative, the defendant cannot agree to the separation of the jury in a felony case without the jurors are in charge of an officer. Cases supporting this statement are found in Vernon’s Annotated Criminal Procedure on page 26. Nor can his attorney agree to accept written statements of an adverse witness in lieu of his personal testimony, nor waive sanction of an oath. To make such agreement valid, it must be made by the accused. Bell v. State, 2 Tex. App. 215, 28 Am. Rep. 429; Allen v. State, 16 Tex. App. 237. An attorney, without defendant’s consent, cannot, prior to verdict, admit any inculpatory fact. Simco v. State, 9 Tex. App. 338. Only defendant can waive his right of personal presence at any stage of the trial. Quite a number of these cases are found in Mr. Vernon’s Annotated Criminal Procedure on page 27. In Pizano v. State, 20 Tex. App. at page 144, 54 Am. Rep. 511, the opinion shows that the unexpected occurrences which no reasonable diligence could have anticipated did occur, and the court said that:

“The statute never could have contemplated that the jury impaneled should be discharged when the case was simply postponed to a subsequent day of the term, or that it should be discharged even in case of a continuance for the term, except upon the clearest showing of a necessity therefor. To hold that such could, be done would be to make the statute contravene and render nugatory the constitutional guaranty against jeopardy. In this case, when the postponement was granted, the jury should have been kept together in charge of an officer until the witness could be brought into court and the trial renewed. * * * Most clearly to our minds there was no necessity for a discharge of the jury; and the discharge under the circumstances detailed in the bill of exceptions was equivalent to a verdict of acquittal of the prisoner, and constituted such jeopardy under the constitutional provision as that he could not again be subjected to a second trial for the same offense.” Pizano v. State, supra.

There are a number of similar cases.

In Sterling v. State, 15 Tex. App. 256, the court uses this language:

“True, the defendant might waive the provisions of the law requiring jurors impaneled to be kept together until the termination of the trial, etc. (Code Crim. Proc. art. 23); but such waiver must be expressly made by the defendant himself, and cannot be made by his counsel so as to bind him, nor can his mere silence or failure to object be construed to be a waiver by him. Early v. State, 1 Tex. App. 248 [28 Am. Rep. 409]; Hill v. State, 10 Tex. App. 618.”

I do not care to follow this line of thought further. It is held by the majority opinion that a defendant cannot plead jeopardy where the jury is discharged on the first trial on his own motion or with his consent. That is not this case. It is a new rule set up in the majority opinion, to wit, that counsel can waive all the rights of the defendant in matters of this sort, and such waiver construed to be the personal waiver of the accused. This has not heretofore been the law. It is also asserted that where a question of this sort is raised, the evidence must clearly show the action of the trial judge to be erroneous,, This may be correct. But the defendant cannot be denied the right to prove his plea, and at the same time punished for not proving it. Such ruling is a little peculiar. Appellant tendered his plea, the court sustained a demurrer, put his plea out of court, and now he is held derelict in not clearly proving it. This he purposed to do by a plea of jeopardy, but the trial court refused to hear him. I do not understand very well how he could have introduced evidence when the court positively refused to hear it. Pacts enough are stated, if proved, to have entitled him not only to a submission of the issue but to a discharge under that plea.

I, therefore, respectfully dissent.

On Motion for Rehearing.

MORROW, J.

This case was affirmed on a former day of the term in an opinion by Presiding Judge PRENDERGAST, from which Judge DAVIDSON dissented. The sole question involved was whether or not the trial court erred in refusing to submit to the jury appellant’s plea of former jeopardy. The plea and the action of the court thereon were stated in both of the opinions mentioned, and on this consideration of the appellant’s motion for rehearing reference is made to the statement of the case in the majority and dissenting opinions. Article 1, § 14 of the Constitution, says:

“No person, for the same offense, shall be twice put in jeopardy of life or liberty.”

Jeopardy is not defined in the Constitution, but its meaning has been ascertained by our courts before the adoption of the Constitution, and it is held in Powell v. State, 17 Tex. App. 350, that the prior interpretation of this meaning was binding, and was, in substance, as given by Mr. Cooley as follows:

“A person is in legal jeopardy when he is put upon trial, before a court of competent jurisdiction, upon indictment or information which is sufftcient in form and substance to sustain a conviction, and a jury has been charged with his deliverance. And a jury is said to be thus charged when they have been impaneled and sworn. The defendant then becomes entitled to a verdict which shall constitute a bar to a new prosecution; and he cannot be deprived of this bar by a nolle prosequi entered by the prosecuting officer against his will, or by a discharge of the jury and continuance of the case.” Cooley’s Const. Lim. (15th Ed.) 404.

The common-law rules with reference to the principles relating to jeopardy have been adopted by our statutes (P. C. art. 4), where not in conflict with some of -the written laws of the state, and the procedure with reference to them is upon the same footing. Article 26, C. C. P. From the numerous authorities decided in 10 Amer. & Eng. Ann. Cas. 1086, the rule with reference to jeopardy as there stated is thus laid down:

“The rule may be deduced from the authorities to the effect that where a person has been placed on trial before a competent court and jury on a valid and sufficient indictment or information, jeopardy attaches, and if a mistrial is ordered and the jury discharged without the consent of the defendant, or some overruling necessity, a plea of former jeopardy will lie to any subsequent prosecution for the same offense.”

The circumstances under which a jury may be discharged after jeopardy is given in our statute (article 616, C. C. P.) as follows:

“A continuance may be granted on the application of the state or defendant after the trial has commenced, when it is made to appear to the satisfaction of the court that by some unexpected occurrence since the trial commenced, which no reasonable diligence could have anticipated, the applicant is so taken by surprise that a fair trial cannot be had, or the trial may be postponed to a subsequent day of the term.”

This statute has been interpreted in the cases of Woodward v. State, 42 Tex. Cr. R. 188, 58 S. W. 135, and Pizano v. State, 20 Tex. App. 139, 54 Am. Rep. 511.

The plea, which is substantially set out in the dissenting opinion mentioned, charged that after jeopardy attached, the trial court held the state’s essential prosecuting witness incompetent, and discharged the jury upon motion of the state’s attorney, with the consent of defendant’s counsel, but without the defendant’s consent; he neither consenting nor protesting. This plea, having been stricken out on demurrer, must be considered as true, and the action of the court in striking it out can be sustained only upon the theory that under the circumstances the court had authority tq discharge the jury without the consent of the defendant, or upon the theory that the consent of the defendant’s counsel was binding upon the defendant. In Bell v. State, 2 Tex. App. 216, 28 Am. Rep. 429, it was held that an attorney cannot bind the defendant by an agreement to allow the introduction of secondary evidence of incriminating facts, because such agreement would deprive defendant of the constitutional right to be confronted with the witnesses against him. In McDuff v. State, 4 Tex. App. 61, it was held that an agreement by attorneys to waive copy of indictment will not be binding on defendant, and the same principle is asserted in the ease of Murmutt v. State, 63 S. W. 634. The agreement of counsel to discharge the jury, in the present case, would, if binding on appellant, have the effect of waiving the constitutional guaranty against being twice put in jeopardy for the same offense. Nor would the silence of appellant under the circumstances set out in the plea of former jeopardy deprive him of his right to urge the plea on a subsequent prosecution. It was held in the case of Sterling v. State, 15 Tex. App. 255, that where a jury was discharged with the consent of counsel for the defendant, given in hearing of the defendant, that such consent was not binding upon defendant. To the same effect is Hill v. State, 10 Tex. App. 618. The law does not Impose upon the defendant in a criminal case the duty of protesting against the discharge of a jury where it was not authorized by law.

The plea raising an issue of fact as to whether the trial court had the consent of defendant to the discharge of the jury, this question of fact should have been tried and submitted to the jury, unless the conditions were such as under article 616, C. C. P., that the trial court could discharge the jury without his consent. This statute gives such authority to the court when there is “some unexpected occurrence since the trial commenced, which no reasonable diligence could have anticipated.” The occurrence which took place as shown by the record in this ease after the trial began was that the trial judge held, after interrogating the state’s witness, who was only three years old, that she was not qualified to give testimony. Article 788, Vernon’s Ann. C. C. P., declares that:

“Children or other persons who, after being examined by the court, appear not to possess sufficient intellect to relate transactions with respect to which they are interrogated, or who do not understand the obligation of an oath,” are incompetent to testify.

Mr. Wharton, in his work on Criminal Evidence, § 366, p. 743, uses the following language:

“To permit a child under four years of age to be sworn and examined as a witness would be to trifle with public justice. Hence the dying declarations of a child of four years have been properly hold inadmissible, and the admissibility of children of that age, as witnesses, is, on the .same reasoning, disputed. But the testimony of a child of between four and five years of age, and that of a child between six and seven, has been received on the trial of an indictment charging an attempt to ravish. Four years has been assigned as the minimum age, but after this age the question of admissibility is to be decided by the court.”

The competency of young children as witnesses has often been a controverted issue in the trial of causes in this state, as will be noted from the citation of cases on the subject in Branch’s Crim. Law, § 854, and Vernon’s Ann. C. C. P., p. 699. In the case of Pizano v. State, 20 Tex. App. 140, 54 Am. Rep. 511, a state’s witness, whose testimony was essential to the state, was absent, and the state’s counsel withdrew his announcement of ready on the ground of surprise, he having announced ready upon information from the sheriff that the witness was present, and the jury was discharged. On a subsequent trial, the plea of former jeopardy was interposed and sustained in this court, it holding that these circumstances were not such as to give the court discretion to discharge the jury. The indictment in the present case was filed May 16th, and the trial occurred October 11th in the same year. It does not-occur to us that .the incompetency of the three year old child, or the fact that the learned judge would upon examination hold such witness incompetent, would be such an unexpected occurrence that no reasonable diligence could have anticipated. It might possibly be a question of fact, but clearly it could not, in our judgment, be held as a matter of law to have authorized the discharge of the jury without the consent of the defendant.

As the record is presented we do not think the recital in the interlocutory judgment entered after the jury had been discharged would deprive the appellant of the right to urge his plea of former jeopardy in the subsequent prosecution. Vela v. State, 49 Tex. Cr. R. 588, 95 S. W. 530.

We think the trial court erred in dismissing the plea of former jeopardy. It is therefore ordered that the motion for rehearing be granted, and the judgment be reversed and the cause remanded.

PRENDERGAST, P. J. I have no doubt whatever that the question' in this case was correctly decided in the original opinion affirming the judgment. This motion for rehearing should be overruled. I dissent from the opinion granting a rehearing and reversing and remanding this cause.


author: MORROW, J.

text:
    Ex parte DRANE.
    (No. 4336.)
    (Court of Criminal Appeals of Texas.
    Feb. 7, 1917.)
    1. Habeas Corpus <&wkey;31 —• Voidable Pro-CEEDINOS.
    Code Cr. Proc. 1911, art. 63, provides that when two or more courts have concurrent jurisdiction of an offense against the penal laws, the court in which an indictment or complaint is first filed shall retain jurisdiction of the offense to the exclusion of all other courts. Vernon’s Ann. Code Cr. Proc. 1916, art. 160, provides that the writ of habeas corpus is the remedy to be used when any person is restrained of his liberty. Appellant was charged by complaint with a violation of the Pure Food Law and gave bond for his appearance. Subsequently affidavit and information were filed against him in another court charging him with the same offense, and the pending case was dismissed. Held, that while under article 63 prosecution should have been in the court in which it was first filed, this fact would not entitle the appellant to his discharge on habeas corpus when arrested on process issued from the court in which the case was subsequently filed, but his rights and remedies could only be enforced by proper proceedings upon the trial of the case, since the writ of habeas corpus cannot serve to discharge the appellant on account of errors or irregularities which render the proceedings voidable merely, but only lies to secure a release where the proceedings are absolutely void.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. § 27.]
    2. Indictment and Information <&wkey;3 — Necessity of Indictment — Constitutional and Statutory Provisions.
    Under Const, art. 1, § 10, requiring indictment only in felony cases, and White’s Ann. Code Cr. Proc., art. 436, providing that misdemeanors may be prosecuted by either indictment or information, and Vernon’s Ann. Code Or. Proc. 1916, art. 642, providing that under certain circumstances a prosecution shall be dismissed and the bail discharged, unless indictment or information are presented, an indictment was not required to charge a violation of the Pure Pood Law (Vernon’s Ann. Pen. Code 1916, arts. 699, 700), but prosecution by information was sufficient to justify retention of the accused.
    [Ed. Note. — Por other cases, see Indictment and. Information, Cent. Dig. §§ 9-23.]
    3. Habeas Corpus <&wkey;92(l) — Evidence—Burden oe Proof.
    In habeas corpus for the discharge of applicant arrested on process in an action charging violation of the Pure Pood Law, where bail was granted by the trial court, the sheriff was not charged with the burden of proving the applicant’s guilt, but was required only to show that the applicant was not illegally held by showing that he was charged by complaint and information of an offense within the jurisdiction of the court, and that he was held by the sheriff under process from that court.
    [Ed. Note. — Por other cases, see Habeas Corpus, Cent. Dig. § 96.]
    4. Habeas Coiípus ¡&wkey;30(2) — Grounds for Relief — 'Invalidity of Indictment.
    The Pure Pood Law (Vernon’s Ann. Pen. Code 1916, arts. 699, 700) provides that no person, firm, or corporation shall manufacture for sale, have in his possession with intent to sell, offer or expose for sale, or sell or exchange any article of food which is adulterated, and that an article shall be' deemed to be adulterated if any substance has been mixed and packed with it so as to reduce or lower or injuriously affect its quality or strength. An information charged that applicant had in his possession with intent to sell and offered and exposed for sale butter which had been adulterated by being mixed with water. Held, that the prosecution is not upon a void information so as to authorize its attack by habeas corpus proceedings, since such matters as go to the manner and form of the information are not available on application for writ of habeas corpus, but must be raised by motion or plea in the trial court.
    [Ed. Note. — Por other cases, see Habeas Corpus, Cent. Dig. § 25.]
    Appeal from Galveston County Court at Law; J. C. Canty, Judge.
    Application by J. W. Drane for a writ of habeas corpus against the Sheriff of Galveston County. Prom a judgment refusing his application for a discharge from custody to discharge him, applicant appeals.
    Affirmed.
    T. C. Tumley and V. M. Clark, both of Galveston, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant prosecutes this aqjpeal from a judgment in the county court at law of Galveston county, refusing to discharge him on hearing of his application for writ of habeas corpus.

Appellant was charged with a misdemean- or growing out of an alleged violation of the Pure Pood Law. Complaint was filed against him in the corporation court of the city of Galveston, and he gave bond for his appearance before that court. Subsequently, affidavit and information were filed against him in the county court at law of Galveston county, charging him with the same offense, and the case pending in the corporation court was dismissed.

His contention is that under these facts the county court at law had no jurisdiction to try him. He insists also that prosecution by information was not sufficient to justify his detention, but that an indictment would have been required. He contends also that the sheriff, who had taken him in charge under process issued in the county court at law, was charged with the burden of proving his guilt, and that the mere introduction of the process, together with the complaint and information, did not justify his detention, and further that the complaint charged no offense.

In the case of Vaughn v. State, 32 Tex. Cr. R. 407, 24 S. W. 26, and in several cases cited therein, this court held that there was no way to prevent the state from filing a case in two courts, each of which had jurisdiction of the person and subject-matter, and subsequently dismissing the case in one of the courts and trying-it in the other. Subsequent to the time these decisions were rendered, article 63, C. C. P., was amended so as to provide that when two or more courts have concurrent jurisdiction of any offense against the penal laws of this state, the court in which an indictment or complaint shall first be filed shall retain jurisdiction of said offense to the exclusion of all other courts. In obedience to this statute, the prosecution in this case should have been in the court in which it was first filed. This fact, however, would not entitle the appellant to his discharge on habeas corpus when arrested on process issued from! the court in which the case was subsequently filed. His rights and remedies relating thereto could only be enforced by proper proceedings upon the trial of the case. Pittcock v. State, 73 Tex. Cr. R. 1, 163 S. W. 972; Wilks v. State, 66 S. W. 787. The writ of habeas coipus cannot serve to discharge the applicant on account of errors or irregularities which render the proceedings voidable merely, but lies to secure a release where the proceedings are absolutely void. Vernon’s C. C. P. p. 103, art. 160, note 3. It is not available to establish former jeopardy, conviction, or acquittal. Id., note 11.

His claim that the prosecution failed because prosecuted by information rather than by indictment cannot be sustained. The Constitution (article 1, § 10) only requires felony cases to be presented by indictment; article 436, White’s Ann. Code of Crim. Proc., provides that misdemeanors may be prosecuted by either indictment or information; and article 642, Vernon’s Ann. Code of Crim. Proc., provides that under certain circumstances a prosecution shall be dismissed and the bail discharged, unless indictment or information are presented.

Under his proposition that the respondent was charged with the duty of proving his guilt appellant cites the case of Ex parte Newman, 38 Tex. Cr. R. 165, 41 S. W. 628, 70 Am. St. Rep. 740. That was a capital case, and it was held that the mere introduction of the indictment was not sufficient authority for the court to bold the accused without bail, but that to justify such action evidence was required to show that the proof was evident of the defendant’s guilt of a capital offense. This rule does not apply where bail is granted by the trial court, as was done in this case. The respondent was required only to show that the appellant was not illegally held, and this obligation was discharged by showing that he was charged by complaint and information with an offense within the jurisdiction of the county court, and that he was held by the sheriff under process from said court. The question of the innocence or guilt of the appellant would be relegated to the trial of his case on its mterits. Ex parte Muse, 74 Tex. Cr. R. 476, 168 S. W. 520; Ex parte Jennings, 76 Tex. Cr. R. 116, 172 S. W. 1143; Ex parte Kent, 49 Tex. Cr. R. 12, 90 S. W. 168. The principle controlling in the above cases distinguishes the practice in this state from that pursued in the California case cited by appellant (Ex parte Sternes, 82 Cal. 245, 23 Pac. 38), where an inquiry into the facts was held on a habeas corpus proceeding.

The information on which appellant was held is as follows:

“That in the county of Galveston, state of Texas, on or about the 21st day of November, A. D. 1916, J. W. Drane, in the county and state aforesaid, did then and there have in his possession with intent to sell, and did then and there offer and expose for sale a cei’tain article of food, to wit, butter, which said butter was then and there adulterated, in this, to wit, that then and there a certain substance, to wit, water, had then and there been mixed and packed with said butter so as to reduce and lower and injuriously affect its quality and strength. * * * ”

Appellant contends that this information charged no offense. If it in law charged no offense, it would be the duty of this court to discharge the appellant If, however, it charges an offense, but does so in a defective manner, then this court would not discharge him. Such matters as go to the manner and form of informations are not available on application for writ of habeas corpus, but to be considered if raised by motion or plea in the trial court. Ex parte Beverly, 34 Tex. Cr. R. 634, 31 S. W. 645; Ex parte Williford, 50 Tex. Cr. R. 417, 100 S. W. 919; Ex parte Cox, 53 Tex. Cr. R. 240, 109 S. W. 369; Ex parte Webb, 113 S. W. 545; Ex parte Wolf, 55 Tex. Cr. R. 231, 115 S. W. 1192; Ex parte Cain, 56 Tex. Cr. R. 539, 120 S. W. 999; Ex parte Knapp, 57 Tex. Cr. R. 411, 123 S. W. 597; Ex parte Hendrix, 64 Tex. Cr. R. 452, 142 S. W. 570.

The so-called Pure Food Law (articles 699 and 700, Vernon’s Penal Code) provides that:

“No person, firm or corporation, shall within this state manufacture for sale, have in his possession with the intent to sell, offer or expose for sale, or sell or exchange any article of food * * * which is adulterated * * * within the meaning of this act. * * * ”

And further:

“That for the purposes of this act, an article shall be deemed to be adulterated * * * in the case of food, (1) if any substance has been mixed and packed with it so as to reduce or lower or injuriously affect its quality or strength.”

This act has been held by this court constitutional. Focke v. State, 65 Tex. Cr. R. 353, 144 S. W. 267; Green v. State, 66 Tex. Cr. R. 664, 148 S. W. 311. Other cases passing upon the power of Congress and the Legislatures of various states to pass similar laws are: Plumley v. Mass., 155 U. S. 461, 15 Sup. Ct. 154, 39 L. Ed. 223; State v. Hutchinson, 56 Ohio St 82, 46 N. E. 71; Savage v. Jones, 225 U. S. 501, 32 Sup. Ct. 715, 56 L. Ed. 1182; People v. West, 106 N. Y. 293, 12 N. E. 610, 60 Am. Rep. 452; State v. Campbell, 64 N. H. 402, 13 Atl. 585, 10 Am. St. Rep. 419; State v. Groves, 15 R. I. 208, 2 Atl. 384; Meyer v. State, 134 Wis. 156, 114 N. W. 501, 14 L. R. A. (N. S.) 1061. It has been held that the addition of water was an adulteration (Commonwealth v. Schaffner, 146 Mass. 512, 16 N. E. 280), and that the indictment need not allege the quantity of water.

The statute under which appellant is prosecuted being valid, and the indictment charging an adulteration by the use of water, the prosecution is not upon a void information so as to authorize its attack by habeas corpus proceeding. Whether other averments are necessary when tested by motion to quash is a question which we are not called upon to determine.

It follows from the foregoing that in the opinion of the court the judgment of the court below should be affirmed, and it is so ordered.
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text:
    DOLEZAL v. STATE.
    (No. 4335.)
    (Court of Criminal Appeals of Texas.
    Jan. 10, 1917.
    On Motion for Rehearing, Feb. 21, 1917.)
    1. Criminal Law <&wkey;1163(2) — Harmless Error-Burden of Showing.
    Por remark of court that a state’s witness is an unwilling witness and that the prosecuting attorney may lead him, to be ground for reversal, the record must disclose probability of injury.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 3092, 3093.]
    2. Criminal Law <&wkey;1091(2) — Bill of Exceptions — Sufficiency.
    The bill of exceptions to remark of court that a state’s witness was an unwilling witness, and the prosecuting witness might lead him, failing to show that any testimony was elicited from the witness, is insufficient.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2S31.]
    3. Witnesses &wkey;>406 — Rebutting Evidence.
    Defendant on a prosecution for carrying a pistol, testifying that the pistol carried by him was broken and could not be shot (in which ease it would be no offense to carry it), and that he owned and had no other, evidence that two or three weeks before he had a pistol aut in the road, and fired it, was admissible.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1276-1279.]
    4. Weapons <&wkey;17(3) — Pbosecutions —Evidence.
    That defendant had a pistol out in the road and fired it several times, two or three weeks before the date named in the indictment, charging carrying of a pistol on or about a certain day, is proper evidence to establish the offense charged.
    [Ed. Note. — For other cases, see Weapons, Cent. Dig. §§ 27, 28.]
    5. Witnesses <&wkey;406 — Rebutting Evidence.
    As meeting the issue made by the testimony of defendant, that the pistol with the carrying of which he was charged was not in condition to be shot, the state, on rebuttal, could show that at the time of the alleged offense, defendant called P. a name, and, when P. jumped off his team and struck him, pulled a pistol from his pocket.
    [Ed. Note. — For other eases, see Witnesses, Cent. Dig. §§ 1276-1279.].
    6. Criminad Law <&wkey;396(2) — Evidence — Bringing out Whole Transaction.
    Defendant having ' on cross-examination of state’s witness drawn out part of the details of the difficulty between them, the state may introduce other details.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 862.]
    7. Criminal Law <&wkey;364(l) — Evidence—Res Gestje.
    Details of a difficulty between defendant and another, being part of the res gestae, may be shown on a prosecution for carrying a pistol.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 808-810.]
    On Motion for Rehearing.
    8. Weapons <&wkey;17(4) — Carrying—Sufficiency of Evidence.
    Evidence, on a prosecution for carrying a pistol, held sufficient to sustain a conviction as of the time of defendant’s difficulty with another.
    [Ed. Note. — For other cases, see Weapons, Cent. Dig. § 29.]
    9. Criminal Law @=3678(5) — Time of Offense-Failure to Require Election.
    The state, on a prosecution for -carrying a pistol on or about a certain day, not having been requested to elect as between different occasions, evidence sufficient as to a time several weeks before such day will support a conviction; even if the evidence as to the offense on the day named is insufficient.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1583.]
    Appeal from Harris County Court at Law; W. E. Monteith, Judge.
    Frank Dolezal was convicted, and appeals.
    Affirmed.
    Heidingsfelders, of Houston, for appellant. John H. Crooker, Cr. Dist. Atty., and E. T. Branch, both of Houston, and C. C. McDonald, Asst. Atty. Gen., for the State.
   MORROW, J.

Charged with the offense of carrying on and about his person a pistol on or about the 12th day of October, 1916, appellant, Frank Dolezal, was tried before a jury and convicted, and his punishment fixed at a fine of $100.

The fact that appellant had possession of the pistol at the time and place charged was conceded, but it was urged in defense that the pistol was broken and not in condition to be shot. S. T. Petrosky testified that, he saw the appellant have and carry on and about his person a pistol on October 12, 1916, in Harris county, Tex.; and on cross-examination by appellant he further stated that the appellant took the pistol out of his pocket and pointed it at the witness; that it was a small automatic pistol. A small blue automatic pistol was exhibited to him by appellant’s counsel. He stated that it looked like the one appellant had. Appellant testified that the pistol exhibited to the witness was the one that he had in his possession at the time of the alleged offense, and he did not own, and never owned, any other. It was conceded by the state that the pistol exhibited at the trial was in such condition that it would have been no offense to carry it. The state, in rebuttal, introduced testimony to the effect that at the time the appellant was charged with possession of the pistol, appellant had cursed the prosecuting witness Petrosky, that Petrosky struck the appellant, and that the appellant reached in his pocket and pulled out a pistol, pointed it at Petrosky, and snapped it twice. There was evidence introduced by the state also that the pistol exhibited at the trial was not the same pistol that the appellant had at the time of the alleged offense.

Complaint is made in the first bill of exceptions to a remark made by the presiding judge in response to a request by the prosecuting attorney that he be permitted to lead the state’s witness Schneider, the remark complained of being as follows: “Yes; the witness is an unwilling witness, and you may lead him.” While the statute prohibits the trial judge from commenting upon-the testimony, the rule of law followed by this court is that it is not every comment that requires a reversal of the judgment, but that before a reversal is authorized, it is essential that the' probability of injury shall be disclosed by the record. Stayton v. State, 32 Tex. Cr. R. 33, 22 S. W. 38; Milo v. State, 59 Tex. Cr. R. 199, 127 S. W. 1025. The bill of exceptions in question fails to show that any testimony was elicited from the witness Schneider, and in consequence of such failure does not show any error. Harris v. State, 37 Tex. Cr. R. 446, 36 S. W. 88. Looking to the statement of facts, however, it appears that the witness Schneider testified, in effect, that he was unwilling to testify because he was a friend to both parties.

The state, in rebuttal, introduced a witness who testified that, two or three weeks prior to the difficulty between appellant and Petrosky above mentioned, the appellant had a pistol out in a road and fired it several times. The admission of this testimony is complained of a.s being “irrelevant and immaterial, and, further, that the state was relying to sustain a conviction on the charge of carrying a pistol on the day and date alleged in the indictment, and was highly prejudicial.” The evidence was admissible in view of appellant’s evidence that the pistol carried by him was broken and could not be shot, and that he owned and had no other pistol (Craig v. State, 23 S. W. 1108; Stovall v. State, 97 S. W. 93; Bedford v. State, 170 S. W. 728; Lampkin v. State, 47 Tex. Cr. R. 625, 85 S. W. 803; Briscoe v. State, 32 Tex. Cr. R. 411, 24 S. W. 95; Upton v. State, 33 Tex. Cr. R. 231, 26 S. W. 197; Irvin v. State, 51 Tex. Cr. R. 53, 100 S. W. 779; Griffin v. State, 54 Tex. Cr. R. 375, 112 S. W. 1066, and in the absence of a demand that the state elect as to which transaction it would rely on for a conviction, it was proper testimony going to establish the offense charged (Bradshaw v. State, 32 Tex. Cr. R. 381, 23 S. W. 892).

Appellant complains in his third bill of exceptions of the action of the court in permitting the state to prove that, at the time of the alleged offense:

“The defendant called young 'Petrosky 'a damn liar, and young Petrosky jumped off a hay wagon and struck him twice, and it was then that the defendant reached in his right side pocket and pulled out a gun.”

This testimony was introduced by the state in rebuttal, and is deemed proper as meeting the issue made by the appellant that the pistol was not in condition to be shot. McMahon v. State, 16 Tex. App. 360; Muldrew v. State, 73 Tex. Cr. R. 463, 166 S. W. 159. A part of the details of the difficulty between appellant and Petrosky were drawn out by appellant on cross-examination of the witness Petrosky, and the details, the admission of which are complained of, were a part of the res gestee, and for both of these reasons were admissible.

The evidence, in our judgment, is sufficient to support the conviction, and it is ordered that the judgment of the lower court be affirmed.

On Motion for Rehearing.

On motion for rehearing appellant insists that the facts were insufficient to support a conviction.

Appellant had a difficulty with Petros-ky on October 12, 1916, and at the time of this difficulty he exhibited a pistol. He claimed that the pistol was not in condition for use, and exhibited at the trial of the case a pistol which he claimed was the same that he had in his possession at the time of the difficulty, and this pistol exhibited at the trial was admittedly so out of repair as to be useless. An issue of fact was raised with reference to the identity of the pistol exhibited at the trial and that in the possession of appellant at the time of the difficulty. At the time of the difficulty he snapped the pistol a couple of times, and one of the witnesses, Frank Markel, who saw the difficulty, testified that the pistol exhibited at the trial was not the same one that appellant had in his possession at the time of the difficulty. After the difficulty appellant went to Petrosky and asked him not to prosecute him on account of the pistol. In this conversation appellant did not tell Petrosky that the pistol was broken, but told him that he had it for his protection, as he worked ne-groes down on his place and he kept it for his own protection; at least Petrosky so testified. We think that this evidence is sufficient to support the finding of the jury that the appellant was unlawfully carrying a pistol at the time of the difficulty.

In addition to this, there was testimony that two or three weeks before the difficulty appellant had a pistol out on the road and fired it several times. No request was made of the state to elect as to which occasion the prosecution would be founded upon, and in this state of i;he record the testimony last mentioned above would of itself authorize a conviction.

The motion for rehearing is overruled.
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author: PRENDERGAST, P. J. DAVIDSON, P. J. PRENDERGAST, J.

text:
    HAMILTON v. STATE.
    (No. 4320.)
    (Court of Criminal Appeals of Texas.
    Dec. 27, 1916.
    On Motion for Rehearing, Feb. 7, 1917.)
    1. Intoxicating- Liquoes <&wkey;238(2) — Illegal Sale — Evidence.
    Testimony on prosecution for illegal sale of liquor held sufficient to go to the jury on the theory of defendant being the owner of the whisky sold.
    On Motion for Rehearing.
    2. Intoxicating Liquoes <&wkey;146(3) — Illegal Sale — Agent oar Buyer.
    One merely acting as agent of another in buying whisky is not guilty- of illegal sale.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 160.]
    3. Intoxicating Liquoes <&wkey;23S(2) — Illegal Sale — Sale as Agent — Evidence.
    Evidence on a prosecution for illegal sale of liquor held insufficient to go to the jury on the theory of defendant as agent selling liquor of another.
    Prendergast, J., dissenting.
    Appeal from Newton County Court; W. E. Gray, Judge.
    John Hamilton, Jr., was convicted and appeals.
    Reversed and remanded.
    Forse & Ferguson, of Newton, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted for making an illegal sale of liquor in said county, a misdemeanor, and assessed the lowest punishment.

The sale is alleged to have been made by appellant to Joe Pierce. Pierce testified that on or about the date alleged he asked appellant if he could get him some whisky, and he said that he could. Pierce then gave him $1 in Kirky Lumber Company’s checks, which he said Loonier'Harrison had turned over to him to get the whisky for him with; that he (Pierce) got it for, and when he got it delivered it to, said Harrison; further, that appellant took the check, went out and got in his father’s car, and was gone about 15 minutes, when he returned, walked up behind him, and put a pint bottle of whisky in his pocket. Worth Roberts, another witness, testified substantially to the same thing.

Victor Hughes, for appellant, testified that he heard Pierce ask appellant if he had any whisky. Appellant replied he did not, but that he could get some; that Pierce gave him the said $1 in checks, and he got in his father’s car, drove off about a quarter of a mile to a negro house, he going with him, where appellant said he was going to buy Pierce some whisky; that it was night, and they drove up in front of' a gate. Appellant got out, went in the house, was in the house only a few minutes, and returned. He said he had the whisky. “I did not see the whisky and did not see John buy it.” Appellant’s father testified that on the occasion stated appellant and Hughes came to his car, when his son asked him for his car a few minutes and .said he wanted to go get Pierce some whisky down in the negro quarter, and that he loaned him the car, and that he and Hughes went oil together in it; he did not see him for some time afterwards; that there was no whisky in his car, and appellant had none, for he had been in the. ear with him the biggest part of that afternoon. Appellant himself testified that Pierce on said occasion asked him if he could get him some whisky, and he told him that he would try; that he thought he knew where he could get it, and Pierce gave him $1 in checks; that he and Hughes borrowed his father’s car, went down in the negro quarter to a place where he had been buying whisky from a negro, whose name he did not know, but described him as a long, tall, cross-eyed negro, who was in a certain house; that they drove up in front of the gate; he got out, went in, knocked at the door, and the negro came to the door and asked him what he wanted, and he told him, “I wanted some whisky or wanted to buy some whisky;” the negro invited him in, and he went in through the front room, where some negro women were sitting whom he did not know, and who remained in that room, and when he got in the back room the negro opened a trunk and gave him a pint of whisky, and he gave the negro said $1 in checks; that he took the whisky back and gave it to Pierce; that he had no interest in the sale of the whisky and never made any profit on it; was only acting as a friend of Pierce in helping him to get the whisky; that the reason he knew where to get the whisky was that he had bought whisky there several times before; “I had been driving the car before that, and the first time I knew I could get whisky there I drove a ear there with another party, and he bought some whisky from this darkey was the way I came to find out he was selling whisky;” that after that he sent several other parties to the same negro to buy whisky, and he himself bought it from him several times after that; that the last he bought was for Pierce on said occasion; he did not know the negro’s name; that lie was in no way connected with the sale of the whisky no further than to help Pierce get it; that he had fiot seen the negro since that night.

The court in his charge properly stated the case, and that appellant pleaded not guilty. He stated what the law was and the penalty for making a sale. He then submitted the ease to the jury for a finding. In his charge he told the jury that, if the defendant at the time and place alleged did unlawfully sell intoxicating liquors to Pierce as charged, to find him guilty and assess his penalty. He then gave the converse of the proposition, and that, if they did not so believe beyond a reasonable doubt, to acquit him. The court then gave this charge:

“You are further charged that the statute has reference to the actual sale to the person buying from the alleged seller, whether he purchased for the use of some other person or as an agent. The sale is consummated by him. He is the buyer. The sale is to him, although it may be for the use of some other person, and with some other person’s money.”

And thereupon he further told the jury that, if they believed from the evidence beyond a reasonable doubt that appellant on or about the date alleged sold intoxicating liquors to Pierce, to find him guilty, even though they might find from the evidence that said Harrison or some other person furnished the purchase price of the same, and that the whisky was intended for Harrison or some other person and subsequently delivered to him by said Pierce. The appellant objected to the paragraph above quoted on the ground that it was not called for by the testimony, not applicable to the case, and prejudicial and calculated to mislead the jury. Appellant’s contention cannot be sustained. The paragraph objected to states a correct legal proposition, and, as followed in the charge by the next paragraph stated, was strictly in accordance with the question raised by the testimony, and was applicable to the case. The statement of the testimony above clearly shows that it was the law of the case on the subject raised by and applicable to the testimony.

Following in another paragraph, he told the jury correctly what was a sale within the meaning of the law, which has many times been approved by this court, and further therein that in determining whether a sale has been made the jury will view the parties in the light of buyer and seller as explained, and from that standpoint determine whether any property had been parted with, and, if so, was it for a valuable consideration, and a .sale may be shown by direct proof, or it may be shown by facts and circumstances, and followed that with this paragraph:

“You are charged further, as a part of the law, that if one person acts as the agent of another in selling any intoxicating liquors, or in making a sale of any intoxicating liquor, then such person so acting as the agent of and for such other person in making such sale of intoxicating liquor would be guilty of selling intoxicating liquors, even though such person so acting for and as the agent of such other person made no profit on the transaction; and in this connection you are charged that if you believe from the evidence beyond a reasonable doubt in this case that John Hamilton, Jr., acting either for himself or as the agent of some other person or persons as seller, sold intoxicating liquor to said Joe Pierce as alleged in the indictment, you will find him guilty, even though you may believe from the evidence that the defendant made no profit on the transaction.”

Appellant objected to this quoted paragraph on the same grounds as he objected to the one above, and claimed further that there was np testimony showing he was an agent of the seller or had any connection with the seller other than buying whisky from him. Appellant’s contention cannot be sustained. The paragraph complained of announced a correct proposition of law applicable in the case and raised by the testimony.

The state had two theories. The first was that appellant’s claim that he himself did not have and did not sell any whisky, but went at the instance of Pierce and bought it from an unknown negro, was untrue; that, as a matter of fact, it was his whisky, and he had it staked out somewhere and went and got it and delivered it to Pierce for the said $1 in checks. We think the testimony circumstantially justified the jury to believe this theory of the state, and the charge given was peculiarly apt and applicable thereto. '

The state’s other theory was that if, as a matter of fact, the whisky did not belong to appellant, and he went and procured it from the negro, he was acting as the agent of the negro, and as such made the said sale to Pierce. We think the testimony circumstantially was sufficient to justify the jury to convict him on this theory. So that whether he was convicted on one or the other of these theories is immaterial. As said by this court in Guild v. State, 187 S. W. 215:

“It is the general principle of law * * * that the person who actually commits a crime shall be punished therefor, whether he be acting on his own initiative or is an agent fori a prin-eipal, and especially is this true in misdemeanor cases, as this case is.”

The court gave appellant’s special charge presenting his theory and contention in the case, telling the jury:

“That if you believe from the evidence that the defendant John Hamilton, Jr., received the money or check from Joe Pierce for the purpose of going off and purchasing whisky for Joe Pierce from some other party, and did purchase it from some other party for Joe Pierce, you will acquit the defendant, or, if you have a reasonable doubt as to this fact, you will acquit him.”

Evidently the jury did not believe appellant’s contention, but did believe that of the state.

The judgment is affirmed.

On Motion for Rehearing.

DAVIDSON, P. J.

On a previous day of the term the judgment herein was affirmed. Motion is made for a rehearing for the reasons set out in the motion. There is at least one question suggested on rehearing we think should be decided favorably for appellant. It is unnecessary to recite the evidence, as it is sufficiently stated in the original opinion.

It will be observed, among other things stated by the witnesses, that defendant went to a certain negro’s house to obtain whisky for the alleged purchaser. It is shown that appellant got the whisky for the friend who requested him to secure it and took it to him, paying for it with money given by his principal. If it was appellant’s whisky that was transferred to the purchaser, this would constitute him the seller, but if he acted as agent for the purchaser, he would not be guilty of selling it. The court charged the jury that if appellant was the agent of the seller he would be guilty. This might be the law under a proper state of facts, but there is no evidence in the case that he acted as agent for the negro in selling, but was the agent of the purchaser in obtaining the whis-ky from the negro. Under these circumstances the court erred in authorizing the jury to convict appellant if he acted as agent of the seller in transferring or carrying the whisky to the alleged purchaser. This issue is not raised by the testimony, and therefore could not authorize a conviction. This was error.

The motion for rehearing is granted, the affirmance set aside, and the judgment reversed, and the cause remanded.

PRENDERGAST, J.

(dissenting). Theques-tion now made the basis of reversal was thoroughly considered by the full court as then constituted when the. original opinion was handed down and concurred in by all members. The case was then correctly affirmed. I dissent from its reversal now.
      <&wkey;For other cases, see same topic and KEY-NUMBEK in all Key-Numbered Digests and Indexes


author: DAYIDSON, P. J.

text:
    MILLER v. STATE.
    (No. 4341.)
    (Court of Criminal Appeals of Texas.
    Jan. 31, 1917.)
    1. Larceny <&wkey;3(2) — Intent at Time of Taking.
    In order to constitute theft under the general statute, the fraudulent intent to deprive the owner of his property must exist at the time of the taking.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. § 4; Dec. Dig. <&wkey;>3(2).]
    2. Larceny <&wkey;15(l) — Intent — Holding Horses for Pasturage Charges.
    Where appellant took and advertised horses for sale to secure his pasturage charges, and later removed them from the county, and the matter was in dispute in justice court, the original taking was not fraudulent for the purpose of depriving the owner of his property, and did not constitute theft.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 39, 40; Dec. Dig. &wkey;15(l).]
    3. Larceny <&wkey;70(3) — Instructions — Applicability to Issue.
    Where the original taking was not fraudulent, a charge that where property is stolen in one county the taker may be prosecuted in any county into which he has carried the property, was not appropriate.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. § 185; Dec. Dig. &wkey;70(3).]
    Appeal from District Court, Palo Pinto County; J. B. Keith, Judge.
    Columbus Miller was convicted of theft of horses, and appeals.
    Reversed and remanded.
    D. G. Hunt and E. A. Hill, both of East-land, and Penix & Miller, of Mineral Wells, for appellant. E. B. Hendricks, Asst Atty. Gen., for the State.
   DAYIDSON, P. J.

The indictment contains three counts. Appellant having been convicted under the first count, the others are not noticed. It charged him with an ordinary theft of horses.

There are several questions raised by exceptions to the charge and the introduction of testimony. Without going into a discussion of these seriatim, the main proposition turns upon whether or not the state has made a case of theft, conceding all the facts for the state. Appellant was in charge, if not the owner, of certain landed property. There is a question as to whether or not the mother-in-law of the alleged owner of the horses owned or controlled 80 acres of the tract of land. There is considerable testimony pro and con in reference to this matter. There was also a question as to whether appellant had the right of pasturage, or controlled that matter, when stock were placed In the pasture. There seems to be no question of the fact that he controlled it, unless it was as to the 80 acres. That was a disputed issue to some extent, and it was also a question as to whether or not the mother-in-law of the alleged owner really owned or controlled the land. Castleberry owned some horses; these he desired to pasture on the tract of land mentioned, and had one or more conversations with appellant with reference to placing the horses in the pasture. It was agreed, however, they should be sent to the pasture, and were sent. There were several conversations between appellant and Castleberry with reference to payment of pasturage. Castleberry undertook to make arrangements to satisfy appellant about the pasturage, but failed. Appellant then took in charge two of the animals alleged in the indictment and advertised their sale to pay pasturage, which seems to have amounted to about $60. A day or two before the advertisement was complete Castleberry instituted suit and: sequestrated the animals. This suit was in the justice court. Directly after this appellant replevied the horses, gave bond, and took charge of them. The case tried in the justice court resulted in favor of appellant. Castleberry appealed to the county court. In that trial Castleberry won. Appellant had carried about that time the horses to Palo Pinto county; all these other matters having arisen in Eastland county. This is a sufficient statement of the facts, and under this statement appellant claims that the ease, from any viewpoint, could not. present one of horse theft.

In order to constitute theft of property under the general statute, the original taking must be fraudulent; that is, at the' time of the taking the fraudulent intent existed to deprive the owner of the value of the property and excluded the idea that the party had any right to take the property.

As we understand this record there is nothing to indicate any fraudulent intent on the part of appellant at the time he took the horses up and advertised them for sale for the purpose" of securing his pasturage on these and the other horses. If the pasturage was due and he took up the horses and advertised them for sale in order to secure the payment of this pasturage, it would not be taking for the purpose of fraudulently depriving Castleberry of his property or its value. The civil proceedings indicate that it was a disputed issue, with rather a preponderance of evidence in favor of appellant, that the pasturage was owing and due, and that Castleberry had failed to pay the pasturage, and appellant took this method of securing the payment of such pasturage. From no viewpoint would this be a fraudulent taking under the statute of theft. Whatever may have "been the result of the litigation, the horses were taken for the purpose originally of paying the debt due from Castleberry to appellant. This would not be a fraudulent taking, whether the steps taken were critically legal or not. It seems in the justice court the trial resulted favorably to appellant by awarding him the horses, and under this view of it he carried them to Palo Pinto county, where this prosecution was instituted.

It is unnecessary, under this view of-the case, to discuss the charge of the court, which was given at the instance of the state, that where property is stolen in one county the taker may be prosecuted in any county through or into which he carried the property. Appellant had carried the property from Eastland into Palo Pinto county. If the original taking was not fraudulent, this character of charge was inappropriate, and was not authorized. Believing, as we do, under the facts, there could he no theft or original fraudulent taking, that charge should not have been given, but beyond this, under the facts the state has failed to make out a case of theft, and the conviction ought not to have occurred.

The judgment is therefore reversed, and the cause remanded.

MORROW, J., absent.
      <§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, J.

text:
    DEWBERRY v. STATE.
    (No. 4346.)
    (Court of Criminal Appeals of Texas.
    Feb. 7, 1917.)
    Sodomy &wkey;>6 — Penetration—Sufficiency of Evidence.
    In a prosecution for sodomy, evidence held insufficient to show penetration.
    [Ed. Note. — For other cases, see Sodomy, Cent. Dig. § 7.]
    Prendergast, J., dissenting.
    Appeal from! District Court, Harrison County; H. T. Dyttleton, Judge.
    Ed Dewberry was convicted of sodomy, and he appeals.
    Judgment reversed, and cause remanded.
    Bibb & Bibb, of Marshall, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of the offense of sodomy, and assessed the lowest punishment. The only question is whether or not the evidence was sufficient to sustain the conviction, appellant contending that it was not sufficient to show penetration.

On or about June 16, 1916, Mr. C. P. Cole and appellant were plowing in the same four-acre field on Mr. Craver’s place, appellant working for Cole. Appellant was plowing a mare mule. Mr. Cole testified that, while they were thus engaged:

“I stopped and went to the house, and when I came back, he (appellant) had the mare mule up to a stump, and he was up on-the stump behind the mule. He was motioning his body on the back part of the ’mare mule.. I got in about 30 steps of him before he saw me. He had his hands down here, about his private parts. T got in 20 or 30 steps of him before begot down off of the mule. He got down off the mule and walked around and commenced fastening his pants up. When he was up on the back part of the mule, he was shoving on her back part.”

' On cross-examination, among other things, he testified that Mr. Craver’s house was in full view of the whole field he and appellant were plowing in. He further said:

“I was facing the appellant when I walked to within about 30 steps of him. The mule was facing me, and he was at the back of the mule, also facing me. * * * When I got in 20 or 30 steps from him, he got down off of the mule and went around to the side of her and started pulling up his pants. He did not have his pants down. He had them unfastened and opened in front and had on overalls. ⅜ * * When I saw him he was up on the mule going through the motion of having sexual intercourse with her.”

Appellant testified, positively denying that he had had intercourse with that mule at all. He also swore:

That Mr. Cole did not leave the field they were working in during the time they worked together. “We went to work together and stayed together until we quit. He never did leave the field during the time I worked there with him, only to step aside now and 'then.”

On cross-examination he testified:

“I remember of Mr. Cole breaking a singletree, but he didn’t go to the house then, but went to another white boy out there.”

Nathan Moore and John Mays, his relatives, testified for him! to his being a good, peaceable hoy.

Mr. Craver testified that Mr. Cole came to his house the morning Cole and appellant were plowing in the field to get a singletree clip; that he came from the cotton patch where they were plowing, and left appellant in the field, he supposed, and that Mr. Cole told him about what he had seen appellant doing about 1 o’clock that day. Appellant quit work at noon that day and went to town, and was arrested by the officers that evening, charged with said offense.

The court instructed the jury that in order to make out the offense it was essential that the state should establish penetration, and on that point gave a full and correct charge on circumstantial evidence, and in submitting the case to the jury for a finding required them to believe beyond a reasonable doubt every essential fact constituting the offense before they could convict. No complaint is made to the charge of the court in any particular.

In the opinion of this writer, the evidence under the law was sufficient to sustain the conviction, and the case of Cross v. State, 17 Tex. App. 476, is in point and should be followed. The jury and trial judge saw and heard the witnesses and their manner of testifying. This court neither saw nor heard any of this. The lower court was therefore m'uch more competent to determine the truth of the matter than the judges of this court can be. In my opinion the judgment should be affirmed, and I dissent from its reversal.

However, my Associates are of the opinion that the evidence is insufficient to sustain the verdict on the ground on which appel-[ant attacks it under the authority of the following cases: Mullins v. State, 45 Tex. Cr. R. 465, 76 S. W. 560; Langford v. State, 48 Tex. Cr. R. 561, 89 S. W. 830; Green v. State, 79 S. W. 304; Speers v. State, 55 Tex. Cr. R. 368, 116 S. W. 568; and on their opinion — not mine — the judgment is reversed, and the cause remanded.
      cfeoFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    JOHNSON v. STATE.
    (No. 4351.)
    (Court of Criminal Appeals of Texas.
    Feb. 7, 1917.)
    1. Criminal Law <&wkey;814(5) — Instructions— Conformity to Evidence.
    Two state witnesses having testified positively, in a prosecution for engaging in the business of selling liquors in prohibition territory, to a sale of whisky to them respectively by defendant, and he having sworn positively that he made neither sale nor delivery of whisky to either of them, the court correctly refused to submit the question whether defendant acted as agent in such sales.
    [Ed. Note. — For other cases, see Oriminal Law, Cent. Dig. § 1979.]
    2. Witnesses <&wkey;372(2) — Interest and Bias - —Cross-Examination.
    A witness for defendant, indicted for engaging in the business of selling liquor in prohibition territory, having stated that he was interested in the case, it was proper to ask him on cross-examination whether he was not a barber in the same shop with one who was under indictment for bootlegging, but questions as to whether 0. kept and sold liquor were improper.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1193-1196.]
    3. Witnesses <&wkey;337(5), 345(1) — Impeachment-Other Crimes.
    Neither accused nor any witness in his behalf can be impeached by proof of indictment or conviction of a crime not imputing moral turpitude.
    [Ed. Note. — For other eases, see Witnesses, Cent. Dig. §§ 1126, 1132,1140-1142, 1146-1148.]
    Appeal from District Court, Smith County; R. M. Smith, Judge.
    Gabe Johnson was convicted of engaging in the business of selling liquor in prohibition territory, and he appeals.
    Reversed and remanded.
    N. A. Gentry, W. H. Hanson, and Calhoun & Gentry, all of Tyler, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted for engaging in the business of selling intoxicatiiig liquor in Smith county while the law prohibiting the sale of such liquor was in force.

The indictment alleged two separate and distinct sales by appellant — one to Will Lacey on or about June 1, 1916; the other to Dock Lacey on or about June 3, 1916. These two witnesses testified positively to a sale of whisky to them respectively by appellant about the dates alleged in the indictment. Their testimony, together with appellant’s excluded the idea that appellant was acting as their agent in the purchase by him from some other of the liquor. Appellant himself testified and swore positively that he had made no sales to either of said parties, and also that he had at no time delivered to them any whisky at all. Hence the court correctly refused to submit any question of appellant being the agent of said Laceys in procuring from another for and delivery to them of the whisky.

The record shows that at or about the same time this prosecution was begun against appellant prosecutions of the same character were also begun against some six or eight other persons; these two state’s witnesses being the witnesses against all of said accused persons. It therefore was not only to the interest of appellant, but of all these other accused persons as well, that he should successfully impeach said two witnesses and break them down in their testimony. For this purpose, after laying the proper predicate, appellant introduced John Walton, who testified that on the next day after appellant was arrested charged with this offense he had a conversation with Will Lacey fixing the place, and that Will Lacey then told him that he never bought any whisky from appellant in his life, and did not know two certain other persons. On cross-examination the state, over appellant’s objections, proved by him he was a barber, that he worked in the same shop with Will Coats, and that Coats was under indictment in the district court at the time charged with bootlegging. He was further asked if said Coats did not keep whisky in the shop, and sell it therein, and he answered that he did not know. Under the circumstances of this case, we think it was permissible to show by this witness that he was a barber, worked in the same shop with Coats, and that he knew that Coats was under such indictment as described, but the state should not have been permitted to have gone into the question of whether or not Coats kept and sold whisky in the shop. The part of this testimony which we think was permissible would tend to show the witness’ interest against the state’s witness Will Lacey, and his bias in favor of appellant, especially in view of his further testimony that he was interested in said Lacey boys and wanted to know if they were instrumental in ptosecuting appellant, and that he had been talking and taking a great deal of interest in the case. In view of this witness denying all knowledge of whether or not Coats kept and sold whisky from his shop, no material injury was shown to appellant, but such question should not be permitted on another trial.

By another bill it is shown that the. appellant introduced another witness, Van Boyd, whose testimony was in contradiction and impeachment of both of said state’s witnesses, after laying the proper predicates. Thereupon the state, on cross-examination of Van Boyd, over appellant’s objections, was permitted to prove by bim that he drank whisky, a great deal of it; the witness swearing that he drank more than a quart every two or three days. We think this much was permissible on cross-examination of this witness. Green v. State, 53 Tex. Cr. R. 496, 110 S. W. 920, 22 L. R. A. (N. S.) 706; Lewis v. State, 33 Tex. Cr. R. 618, 28 S. W. 465; State v. Grear, 28 Minn. 426, 10 N. W. 472, 41 Am. Rep. 296; 5 Jones on Ev. §§ 828, p. 147, 902, p. 415, and pages 532, 533, note 57. But we think the balance of the state’s cross-examination of this witness as to where he got the whisky he drank and other liquor which he testified to getting, and asking him if he was a bootlegger himself, was going too far and not proper legitimate cross-examination. Such questions should be excluded on another trial.

It has always been held by this court, and is the law, that the accused, when he testifies, or any other witness, may be impeached by proving by such witness that he has been indicted, legally prosecuted, or convicted of a felony or a misdemeanor imputing moral turpitude when such prosecution or conviction is not too remote; but it has likewise been decided by this court, and is the law, that no witness can be made to testify he has been indicted, nor legally prosecuted nor convicted of a mere misdemeanor not involving moral turpitude to impeach him. These propositions are so well established that it is unnecessary to cite the cases. See 1 Branch’s Ann. P. C. § 167, where some of them are collated. It has also all the time been held .that, when an accused is prosecuted for an illegal sale of intoxicating liquor in prohibition territory, neither by him nor any other witness over his objections can the state be permitted to have him or the other witness testify that he has previously been convicted of a misdemeanor by making such sale. The law is otherwise when the conviction is for a felony in making such sale. Therefore appellant’s bill showing that the state was permitted over his objections to have him testify that he had formerly been convicted in a misdemeanor case for making an illegal sale of intoxicating liquors in prohibition territory presents error.

For this error the judgment is reversed, and the cause remanded.
      cg^jFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    BROOKS v. ED STEVES & SONS et al.
    (No. 5779.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 24, 1917.
    Rehearing Denied Feb. 21, 1917.)
    Garnishment &wkey;235(l) — Division of Fund between Creditors — Jurisdiction of Court.
    A county court can divide money due an insolvent corporation between two garnishing creditors, at least against the objection of the corporation’s president, who held a fictitious assignment of the debt from the corporation for which he had paid no consideration.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 423-425.]
    Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge.
    Action by Ed Steves & Sons and another against the Brooks-Gordon Construction Company and R. E. Brooks, defendants, and W, F. Bonner, Emma J. Bonner, and Mary A. Bonner, garnishees. Judgment for plaintiffs, and defendant R. E. Brooks appeals.
    Affirmed.
    F. R. Williams, of San Antonio, and Woods, King & John, of Houston, for appellant. Terrell & Terrell and Boyle & Stor-ey, all of San Antonio, for appellees.
   FLY, C. J.

Ed Steves & Sons applied for a writ of garnishment in a suit styled “Ed Steves & Sons v. Brooks-Gordon Construction Company and R. E. Brooks,” directed against W. F. Bonner, Emma J. Bonner, and Mary A. Bonner. The garnishees answeredthat R. E. Brooks and the Brooks-Gordon Construction Company had recognized a judgment against them for $774.57, which they were anxious to pay to the proper person to receive the same, and they asked that Brooks and the company be made parties to the suit. Appellant answered that he was not a resident of Bexar county, filed general and special exceptions, setting up two years’ limitation, etc. T. P. Walsh also applied for a writ of garnishment directed against the Bonners, to' which the same answers as in the Steves Case were filed by them. There were suits filed by Steves & Sons and T. P. Walsh against the construction company. R. E. Brooks was the president and owner of 149 of the 200 shares of the company, and claimed that the indebtedness of the Bon-ners had been assigned to him by his company. There were six cases in all which were consolidated by the county court, the contest being as to whom the $774.57 should be paid. The court gave $50 of that sum to the garnishees as an attorney’s fee, and on an agreement of the plaintiffs $263.65 of the amount was allotted to Steves & Sons, and $460.92 to T. P. Walsh. The various pleadings cover 63 pages of the 86-page transcript.

Walsh and Steves & Sons had obtained judgments against the construction company for their debts, and in the consolidation of the causes it was agreed that one judgment in this case should be taken for all the causes. Brooks had attempted to sue the Bon-ners in Harris county, but their plea of privilege was sustained and the cause transferred to Bexar county. Appellant based his claim to the money on a transfer made to him by the construction company.

The first assignment of error is overruled. The county court had before it all the parties claiming any interest in the money owed by the Bonners, and no valid reason has been, or can be, assigned for the court not distributing the money to those to whom it rightfully belongs. Appellant admits that he has been unable to find a case denying to a county court the right to divide the money owing to an insolvent corporation between two creditors having judgments against the corporation, and who have had writs of garnishment served on the debtor to the corporation. We know of no law preventing the distribution of the fund, as was done in this case. We fail to see what right or authority appellant has to question the jurisdiction of the court. The facts show that he has no right, title, or interest in the money, and no one else has complained. Brooks v. Bonner, 149 S. W. 564. The transfer of the Bonner debt by the insolvent corporation to its president, and the holder of about three-fourths of its stock, was not made in good faith, but was fictitious. He paid no consideration for the debt, but was endeavoring to divert the funds of the corporation to pay his debts. The evidence indicates that the transfer was made to obtain jurisdiction over the Bonners in Harris county, as was held in this case when on appeal before the Court of Civil Appeals of the First District. Brooks v. Bonner, herein cited.

The county court had all parties interested in the fund before it, the amount was clearly within its jurisdiction, and we are of the opinion that it had authority to distribute the money as it did.

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