source: Caselaw Access Project

author: HARPER, C. J.

license: Public Domain

text:
    KINNEY et al. v. TRI-STATE TELEPHONE CO. et al.
    (No. 796.)
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 21, 1918.
    Rehearing Denied March 21, 1918.)
    1. PARTIES <§=>48 — INTERVENES! AS DEFENDANT.
    Where intervener by her plea resists plaintiff’s alleged rights, in respect to pleading and proof, she occupies the position of a defendant, and must be governed by the rules applicable to defendants.
    2. Marriage <§=>40(11) — Burden oe Proof.
    Where a wife filed suit against her deceased husband’s employer to recover a death benefit, basing her right to recover on the allegation that she and deceased were lawfully married and had continuously lived together as husband and wife up to his death, and another woman intervened, resisting plaintiff’s right to recovery by a denial of the mariiage, and the further allegation that the bonds of matrimony between herself and deceased had been dissolved by bis death and not before by divorce, prior to his marriage with plaintiff, the burden was on in-tervener to prove that there had not been a valid decree of divorce from herself entered in favor of deceased, since the burden to establish a fact is upon him who asserts it.
    3. Marriage <§=>40(1) — Validity — Presumption.
    Every reasonable presumption will be indulged in favor of the validity of a marriage when such question is inquired into.
    4. Statutes <g=>281 — Pleabing Foreign Law.
    It is necessary to plead the law of another state to render admissible proof of it.
    5. Evidence <®=>80(1) — Foreign Law — Presumption.
    The law of another state not having been pleaded, it is presumed to be the same as that of Texas.
    6. Pleading <§=>3'87 — Facts not Alleged.
    Facts not alleged, though proved, can form no basis for judicial action.
    7. Marriage <§=>40(10) — Overcoming Presumption oe Validity of Second Marriage.
    The fact of a prior marriage is not sufficient to overcome the presumption of the legality of a second marriage.
    8. Divorce <§=>170 — Marriage <®=>37 — Presumption-Divorce and Living with Second Wipe.
    Final decree of divorce rendered by a California court, after the husband’s death, constituted a valid divorce, and, together with the fact of living together by the husband who sought the divorce and his second wife, married after the interlocutory order, validated the second marriage contract, so that the second wife was the lawful wife at the time of the husband’s death, and entitled to recover a death benefit from his employer.
    Appeal from District Court,'Ed Paso County? P. R. Price, Judge.
    Action by Elsie Kinney and another against the Tri-State Telephone Company, wherein Nellie Kinney intervened. From judgment for the intervener, plaintiffs appeal.
    Reversed and rendered.
    Jno. T. Hill, Leigh Clark, and Del W. Harrington, all of El Paso, for appellants. Tur-ney, Culwell, Holliday & Pollard and A. Dor-man, all of El Paso, C. H. Haines, of Denver, Colo., and Jos. M. Nealon, 'of El Paso, for appellees.
   HARPER, C. J.

Elsie Kinney and Nellie O’Favenger brought this suit as the wife and another of H. B. Kinney, deceased, against the Tri-State Telephone Company for $3,060, being the amount of a benefit fund in the latter’s hands, due, under a plan of insurance to be hereinafter described, to them as the beneficiaries therein. Nellie Kinney intervened and claims the fund, alleging that she was the lawful wife of said Kinney, and, further, that she had not been divorced from deceased. The Telephone Company answered that it had the money; that, by the terms of the contract, it was payable, first to the wife of deceased, second to the children, and third to the dependent relatives, and that in the absence of either to lapse, tendered the money into court, to be paid to the party to whom the court determined by its judgment it should be paid. This appeal is from a judgment in favor of intervener, Nellie Kinney, for the entire fund.

Findings of Facts.

The findings of facts by the trial court are very lengthy, so we make such statement of the undisputed facts as are, in our judgment, pertinent to the issues raised by the assignments and counter-propositions of appellee.

Harry B. Kinney and Nellie Flaherty were married June 16, 1909, separated October 5, 1911, and never lived together afterwards. She continued to live in the state of Colorado to the date of the institution of this suit. March 26, 1914, he filed his complaint for divorce in the court of Los Angeles county, Cal. Service was had by delivering a summons to Nellie Kinney in Colorado, and on August 19, 1914, the following judgment was entered:

“In the Superior Court of the State of California in and for the County of Los Angeles.
“Harry B. Kinney, Plaintiff, vs. Nellie Kinney, Defendant. Interlocutory Judgment by Default in Action for Divorce.
“This canse came on regularly to be beard the 19th day of August, 1914, before the said superior court, in department 5 thereof; Geo. S. Richardson appearing as attorney for plaintiff herein, and no one appearing for said defendant. And it appearing that the defendant was duly served with process herein, and said defendant not having answered plaintiff’s complaint herein, within the time provided by law or otherwise; and the default of the defendant for not answering the said complaint having been duly entered herein in the manner provided by law; and evidence having been introduced on behalf of said plaintiff at said hearing of this canse; and said cause having been submitted to the court for its consideration and decision:
“Now therefore said court, having duly considered the same, makes its findings of fact and decision as follows: The court finds that all of the allegations contained ■ in the complaint are true, and that a divorce ought to be granted as prayed for in said complaint. Wherefore it is hereby ordered, adjudged, and decreed that the said plaintiff is entitled to a divorce from the defendant; that when one year shall have expired after the entry of this interlocutory judgment ¿ final judgment and decree shall be entered granting a divorce herein, wherein and whereby the bonds of matrimony heretofore existing between said plaintiff and said defendant shall be dissolved, and at that time the court shall grant such other and further relief as may be necessary to complete disposition of this action.
“Done in open court this 19th day of August, A. D. 1914. Charles Wellborn, Judge.”

On November 14, 1914, Harry B. Kinney and Elsie Kinney were married and lived together as husband and wife to his death. She believed that he had obtained a divorce, though she later and before his death, found and read the above decree. Concerning the matters next above she testified:

“We became engaged some time about the first of December, 1912. X knew he had been married. He told mo he had been married and he intended getting a divorce when I first met him —when i had known Mm about a week. I learned that he actually instituted a suit for divorce. I did not understand that an interlocutory decree had been entered before our marriage. X did not know anything about what happened to the case. I thought I knew he had been divorced because he told me he had. I did not see a copy of the decree before we were married, but X did before Harry’s death see a copy of the interlocutory decree. I read it. It was about December 1, 1912, when we became engaged. That was during his first trip to Raton.”

On January 14, 1916, Harry B. Kinney was accidentally killed while in the service of the Telephone Company.

On February 10, 1916, deceased’s attorneys of record appeared in the court of Los An-geles, and upon motion the above decree was made final by the following decree:

“In the Superior Court of the State of California in and for the County of Los Angeles.
“Harry B. Kinney, Plaintiff, vs. Nellie Kinney, Defendant. Final Decree of Divorce.
“This cause came on regularly to be heard the 19th day of August, A. D.' 1914, Geo. S. Richardson appearing as attorney for plaintiff herein, and not any one appearing for said defendant, and said defendant having been duly served with summons and copy of complaint herein, and said defendant not having answered plaintiff’s complaint herein within the time provided by law or otherwise, and the default of said defendant for not answering said complaint having therefore been duly entered heroin in the manner provided by law, and evidence having been introduced on behalf of said plaintiff herein on said 19th day of August, A. D. 1914, and said cause having been submitted to the court for its consideration and decision, and the court having duly considered the same, filed its findings of fact and decision in writing therein on said 19th day of August, 1914, and on said 20th day of August, 1914, entered its interlocutory decree ordering and decreeing that upon the expiration of the period of one year from the date of entry of said interlocutory decree a final judgment and decree be entered herein ordering and decreeing that the bonds of matrimony heretofore existing between said plaintiff and said defendant be dissolved, and freeing them and each of them from each and all of the obligations thereof, and said findings of fact and conclusions of law, and said interlocutory decree, having been duly filed and entered, and said period of one year having elapsed since the entry of said interlocutory decree, and no appeal having been taken from said interlocutory decree, and said interlocutory decree not having been modified or set aside, and the same being in full force and effect, and said plaintiff, Harry B. Kinney, through his attorney, Geo. S. Richardson, having in open court on this day, to wit, the 10th day of February, A. D. 1916, moved said superior court in and for the county of Los Angeles, in department 5 thereof, for a final order, judgment, and decree in accordance with said findings of fact and conclusions of law, and said interlocutory decree and said motion having been duly heard and no one appearing to contest the same, said motion was duly granted by said court, and said court having made its order that a final order, judgment, and decree be made and entered herein in accordance with said findings of fact and conclusions of law and said interlocutory decree:
“Now, therefore, it is hereby ordered and decreed that the bonds of matrimony heretofore existing between said plaintiff, Harry B. Kinney, and said defendant, Nellie Kinney, be and the same are hereby dissolved, and that said plaintiff and said defendant, and each of them, be and they are hereby freed from each and all of the obligations thereof.
“Done in open court this 10th day of February, A. D. 1916. Charles Wellborn, Judge.” I

Nellie Kinney had known nothing of the whereabouts of her husband from October, 1912, until she learned of his death. She appeared in the court of Los Angeles by attorney by motion to set aside the two decrees, and her motion was overruled. She did not appeal.

January 16, 1914, Harry B. Kinney went into the service of the Tri-State Telephone Company, and at this time it had in effect the plan of disability and death benefits to its employés as follows:

“Plan for Employés’ Pensions, Disability Benefits and Death Benefits.
“Sec. 8. Dmth Benefits. (1) In the event of the death of any employs, resulting from accidental injury, on or after January 1, 1913, arising out of and in the course of employment by the company, there shall be payable to the employes beneficiaries, as provided in paragraph 3 of this section (subject, however, to the conditions elsewhere imposed in these regulations), a death benefit which shall equal three years’ wages, as hereinafter in this section defined, which shall in no case exceed five thousand dollars. In addition to the death benefit, the necessary expenses of the burial of the deceased employs, not exceeding one hundred and fifty dollars ($150.00), shall be paid from the fund. * ⅜ * (3) ⅛¾6 ¿¡gatjj benefit ⅛ case of an employS’s death by either accident or sickness, shall be paid only to the wife (or husband) or dependent relatives of the employs, and such payment shall be made in the following order: Provided, however, that .upon written application of an employs, and good cause shown, the committee may authorize a change in such order of payment, but no persons other than the beneficiaries herein designated shall receive payment on account of such benefit: First, to the wife (or husband) of the employs. * * * ”

At the time Kinney entered the employment of the company he designated his mother as the beneficiary. After his marriage he, in the manner provided, designated Elsie Kinney as his beneficiary.

Opinion.

The first and second assignments attack the following findings of the trial court: (1) That an interlocutory decree was entered in the divorce proceedings in California; (2) that a motion was filed herein raising the question of the jurisdiction of that court to render the judgment it did; and (3) in finding that the decree took effect upon its rendition and entry; and (4) the findings as to what the law of California applicable thereto is.

Upon the proposition that there were no pleadings to support such findings':

In so far as Nellie Kinney by her plea of intervention resists the alleged rights of Elsie Kinney in respect to pleading and proof, she occupies the position of a defendant in the suit, and must be governed by the rules applicable to defendants.

Elsie Kinney having filed this suit basing her right to recover the fund upon the allegation that she and deceased were lawfully married in 1914, and had continuously lived together as husband and wife up to the time of his death, and Nellie Kinney, resisting Elsie’s right to recovery by a denial of the marriage, and the further allegation that the bonds of matrimony between herself and deceased had been dissolved by his death and not before, she thereby placed herself in the position of proving that there had not been a valid decree of divorce entered in favor of deceased. Towne on Texas Pleadings (2d Ed.) p. 296. Article 1819, Vernon’s Sayles’ Statutes, provides that the pleadings shall consist of a statement, in logical and legal form, of the facts constituting the plaintiff’s cause of action or the defendant’s ground of defense. Article 1820, Vernon’s Sayles’ Statutes, provides that the pleadings of an inter-vener shall conform to the requirements of pleadings on the part of the plaintiff and defendant, respectively, so far as they may be applicable. In Moody & Co. v. Rowlands, 100 Tex. 870, 99 S. W. 1112, Justice Brown, speaking for the Supreme Court of Texas, said:

“If a defendant desires to introduce evidence of a fact which does not tend to rebut the facts of plaintiff's case, but which shows an independent reason why plaintiff should not recover upon the case stated and proved, then the defendant must plead the facts which will avoid the legal consequence of plaintiff’s case, else the testimony will not be admissible, and a judgment rendered upon such evidence, * * * will not be sustained.” Citing W. U. Tel. Co. v. Smith, 88 Tex. p. 9. 28 S. W. 931, 80 S. W. 549; Cooper v. Loughlin, 75 Tex. 527, 13 S. W. 37; Willis v. Hudson, 63 Tex. 678; Smothers v. Field Thayer & Co., 65 Tex. 435.

Again, the burden to establish a fact is upon him who asserts it, and every reasonable presumption will be indulged in favor of the validity of a marriage when that question is inquired into. Speer’s Law of Marital Rights, § 17; Wingo v. Rudder, 120 S. W. 1073.

Elsie Kinney having alleged a subsequent marriage to that of appellee (Nellie), the latter was put upon notice that to resist a recovery by Elsie she must show that the latter was not lawfully married, and, since proof of a foreign law was necessary to that end, it became necessary to plead the law of California; not having done so, it is presumed that it is the same as that of Texas. Givens v. Givens, 195 S. W. 877.

Since facts not alleged, though proved, can form no basis for judicial action (Cooper et al. v. Loughlin et ux., 75 Tex. 524, 13 S. W. 37), Elsie Kinney is before the court with pleading and proof that she was the lawful wife of Harry B. Kinney at the time of his death, and there is no pleading nor proof to the contrary, and the fact of a prior marriage is not sufficient to overcome the presumption of the legality of the second marriage. The appellee having assumed the burden of proving that she was the lawful wife and that she had not been divorced, it is doubtful whether the fact of an invalid decree in California, even if admissible in evidence, would he sufficient to overcome this presumption of legality of the second marriage, in the face of the allegation and proof of marriage, and of living together as husband and wife from November, 1914, to the date of his death, January, 1916. Edelstein v. Brown, 95 S. W. p. 1126.

The third assignment is that the trial court should have found as a matter of law that the final decree, having been entered nunc pro tunc, reverted back to the interlocutory decree in point of time, made the decree final of that date, and thereby legalized the marriage, in the absence of an appeal from such final judgment. In ease we are in error in holding that the decrees of the California court, interlocutory and final, were not admissible in evidence, and could not be considered in proof of the fact for which they were adduced, but should be considered for that purpose, i. e., that there was no valid decree of divorce between Nellie Kinney, ap-pellee, and deceased, and it appearing that these decrees were introduced by appellee over the objections of appellants, she, appellee, will be hound by its recitals, and that it is conclusive as to the latter, not having been appealed from. We are of the opinion that construing the effect of the final judgment upon the status of the litighnts for the fund, tested by the rules of law in Texas, is that it constitutes a valid decree of divorce between the parties, and that the decree, together with the fact of living together as husband and wife, validates the marriage contract, and that, therefore, Elsie Kinney, appellant, was the lawful wife of deceased at the time of his death and entitled to recover the fund. Schultze v. Schultze, 66 S. W. p. 56; Wingo v. Rudder, 120 S. W. 1073. See note under Nolan v. Dwyer, 1 L. R. A. (N. S) p. 551; also note Invest. Co. v. Rich, 15 L. R. A. (N. S.) 683. See, also, Morgan v. Morgan, 1 Tex. Civ. App. 315, 21 S. W. 154.

We think that a proper construction of this final decree of the California court is to dissolve the bonds of matrimony existing between the deceased and appellee, and that under the other uhdisputed facts the appellant was the lawful wife of deceased at the time of his death and therefore entitled to recover the fund.

Reversed and rendered.
      <§=>For other cases see same topic and KEY-NUMDER in all Key-Numbered Rigests and Indexes

      <&=For other cases see same tppic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, P. J.

text:
    COPREW v. STATE.
    (No. 4937.)
    (Court of Criminal Appeals of Texas.
    March 13, 1918.)
    1. Criminal Law <©=5598(6) — Continuance-Diligence Required.
    Where an indictment was returned in September and process was not asked for a known witness until six days before the trial in November, there was not sufficient diligence to entitle defendant to a continuance.
    2. Criminal Law <©=>597(3) — Continuance-Absent Witness.
    Where evidence was that defendant assisted another in a burglary by hauling off and concealing the goods, there was no error in refusing a continuance on the ground that the other, if present, would testify that he committed the burglary.
    3. Burglary <®=>41(1) — Sufficiency of Evidence.
    Evidence held, sufficient to support a conviction of burglary.
    Appeal from Criminal District Court, Dallas County; C. A. Pippen, Judge.
    Henry Coprew was convicted of burglary, and he appeals.
    Affirmed.
    John White, of Dallas, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of burglary of a saloon, his punishment being assessed at four years’ confinement in the penitentiary.

There was a lot of whisky taken at the time, of the brand of Hill & Hill and Blue Ribbon. Appellant moved for a continuance on account of the absence of Corry Tippie. The indictment was returned in September, the case tried in November, and process was asked for five or six days prior to the trial. If Tippie would testify as indicated in the application, it was thoroughly known to appellant from the time of the burglary under the showing made by the application itself as well as by the evidence. The diligence is hardly sufficient, but an important question justifying the court in refusing the continuance is found in the fact that Tippie is alleged in the continuance itself to have entered the burglarized house and committed the theft, and that he would so testify on the trial if present. Whether he would so testify or not would be of no importance to defendant. His absence from Dallas county, as alleged in the application, at the time and under the circumstances would tend to indicate that he was avoiding criminal prosecution. But viewing the action of the court in the light of the evidence in the record from the standpoint of the motion for new trial, we are of opinion the court did not commit error. The facts may be considered, in the main, circumstantial in their nature; yet there is a confession or a statement of appellant as to where the stolen goods could be found,- and in pursuance to his statement they were found at the place indicated. He at first denied any knowledge of the matter and indicated a place where they could be but were not found. In a subsequent statement he seems to have told the truth about where the goods were; at least, they were found where he informed the officers they had been secreted. The evidence is uncontroverted that the saloon was burglarized and whisky taken in considerable quantity; that appellant and Oorry Tippie were acting together; and that appellant employed a chauffeur with a machine to transport the goods from where they were taken, or in front of the saloon from which they were taken, to a certain designated point in the city of Dallas. Tippie and appellant were acting together, and appellant paid the fee for the transportation of the goods, and then a further fee for carrying the goods from the place where they were deposited to his (appellant’s) home, amounting to $2. Had Tip-pie been present and testified that he entered the saloon and stole the whisky, under all the circumstances of this case it would not relieve appellant, because he was acting with him at the time in such manner as to authorize a conviction as principal. We are of opinion therefore that the refusal of the continuance does not show error. This seems to be the main contention.

The evidence is unquestionably sufficient to support the conviction, and appellant seems to have had a fair trial so far as this record shows.

The judgment will be affirmed.


author: MORROW, J.

text:
    PRUITT v. STATE.
    (No. 4871.)
    (Court of Criminal Appeals of Texas.
    March 13, 1918.)
    1. Banks and Banking <@=>21 — Drawing Check without Funds — “Swindling.”
    Under Pen. Code 1911, arts. 1421, 1422, defining the offense of “swindling,” it is essential to prove that one drawing a check on a bank, not only had no funds in the bank, but also that he had no good reason to believe that the check would be paid.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Swindling.]
    2. Banks and Banking <©=521 — Drawing Checks without Funds — Sufficiency of Evidence.
    .. Evidence held insufficient to warrant conviction of swindling by drawing check with “no-good reason to believe that such check will be paid,” under Pen. Code 1911, arts. 1421, 1422.
    3. Banks and Banking <©=>21 — Representing Check to be Good — Indictment.
    An indictment under Pen. Code 1911, arts. 1421, 1422, for swindling a corporation by drawing a check, should state the name of the particular person to whom the false representation was made.
    4. Criminal Law <@=>970(7) — Motions in Arrest of Judgment — Defects in Indictment.
    Failure of indictment under Pen. Code 1911, arts. 1421, 1422, for swindling, to state the name of the person to whom the false represen^ tation was made, cannot be questioned after-verdict, under Vernon’s Ann. Code Or. Proc. 1916, art. 849, relating to motions in arrest of judgment.
    Appeal from District Court, Wood Oounty; J. R. Warren, Judge.
    Marvin Pruitt was convicted of swindling, and lie appeals.
    Reversed and remanded.
    C. W. Vickery and B. E. Cathey, both of Quitman, and Simpson, Dasseter & Gentry, of Tyler, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

The indictment was for swindling. The offense as alleged was based upon the fact that appellant defrauded the First National Bank of Hawkins, a corporation, by obtaining from it a sum of money on a check drawn by him on the Continental State Bank of Big Sandy, Tex. It was charged that he represented that he had the right and authority to draw the check, that it would he a good and valid check, and would be paid by the Continental State Bank when presented in the ordinary course of business. This happened about April 15, 1915; the indictment was returned December 7, 1916. Appellant was a merchant, and operated a feed store at Hawkins, and kept an account at both the banks named. During his business operation covering several years he had drawn a great many checks .on the bank at Big Sandy which had been cashed by the bank at Hawkins. Both of the bankers had permitted him to carry an overdraft, and on the occasion in question he was overdrawn with the bank at Big Sandy. He desired to pay for a car load of hay, and sought credit to the extent of about $154 for that purpose of the bank at Hawkins, having his conversation with one of the men who operated it in the absence of the other. The bank declining, he went, he says to Big Sandy, and arranged there with Mr. Perdue, the manager of the bank, to pay the check, and, acting upon his statement that he .would pay it, he drew and negotiated the check, using the money for the purpose stated. Subsequently he says that the banker at Hawkins, who was absent when he first applied for the loan, returned, and told him that he would advance the money; that it was unnecessary to have made the arrangement at Big Sandy. This is denied by the banker at Hawkins. Appellant says that, acting upon this assurance, he told the banker at Big Sandy it would not be necessary for him to pay the check. The check was not paid by the bank at Big Sandy, but there is no other testimony as to the reason.

Articles 1421 and 1422, P. 0., define the offense of swindling. The latter article enumerates certain acts which will constitute swindling, one of these subdivisions specifying obtaining money on a check on any bank when he has not, at the time of giving or drawing such check, or at the time when in the ordinary course of business such check ' would be presented, sufficient funds to pay same, and no good reason to believe that such check will be paid.

To convict appellant it was essential that the state prove that at the time the check in question was drawn appellant not only had no funds at the bank at Big Sandy on which it was drawn, but that he had at that time no good reason to believe that the check would be paid. The absence of good reason to believe that the check would be paid was an element of the offense. The burden was on the state to prove this negative allegation. It was a part of the state’s case. It called none of the officers or others connected with the bank at Big Sandy to prove that appellant had no good reason to believe his check would be paid. It relied apparently upon the fact that appellant had no money in the bank at Big Sandy, and that the check was not paid. He represented that he had the right to draw the check.

The case of Moore v. State, 20 Tex. App. 233, is in point. Moore got money from a person named in the indictment, representing that he had deposited money in a certain bank at Dallas. The state proved by the cashier of the bank that they had bookkeepers, and kept a book in which all deposits were entered, or supposed to be entered, in the regular course of business, and that this book showed no deposit by appellant, and that appellant had never, in the knowledge of the witness, made any deposit. There were other employes of the bank who had authority to receive deposits, and they were not called as witnesses. The court held this evidence insufficient, stating that the law presumes in favor of the innocence of the defendant that he stated the truth when he represented that he had money on deposit in the bank sufficient to pay the check. Presumption of innocence is not overthrown by the evidence on the part of the state establishing prima facie that he had no such deposit. The presumption of innocence must be overcome by evidence that would establish his guilt beyond a reasonable doubt.

The sufficiency of this indictment is challenged on the ground that it should name the persons to whom representations were made. We have failed to find where the exact point has been passed on in this state. Mr. Bishop, in his work entitled New Criminal Procedure, vol. 3, p. 1342, setting out the requisites of an indictment in this character of prosecution, states that the name of the person defrauded and that of the one to whom the pretense is made should be averred. In Washington v. State, 41 Tex. 583, the Supreme Court, in making a quotation, says:

“It is stated by Greenleaf, as a general principle in indictments, ‘that the names of the persons injured, and of all others whose existence is legally essential to the charge, must be set forth, if known, and that it is material that they be precisely, proved as laid.’ 3 Greenl. Ev. § 22. . ■

An essential element of allegation and proof in swindling is the fraudulent representation. This must be made to some person. It cannot be made to an artificial person, such as a corporation, save through some officer or agent who is a natural person. This being true, it would seem that the rules of pleading would require that the name of the person to whom the representation was made should be alleged. It is a fact necessary in proof. It serves to give the accused notice of the facts of the charge against him. It is elementary that the name of the injured party must be stated, and it has been held that when the injured party is a corporation, that fact must be stated. Nasets v. State, 82 S. W. 608; Spurlock v. State, 45 Tex. Cr. R. 284, 77 S. W. 447.

Our courts have held from an early date that in charging swindling there should be a clear and distinct statement of the facts relied on. State v. Baggerly, 21 Tex. 757, and numerous cases listed in Yernon’s P. C. p. 912. We believe the correct rule to be that, where an owner or person injured is a corporation, the compliance with the law requires the name of the person to whom the representation is made be set out, if the name of the person is known. We do not believe the defect in the indictment is such as may be raised after verdict. See Yernon’s C. C. P. art. 849, and cases cited, pp. 844, 845.

Believing the evidence to be insufficient, it is ordered that the judgment of the lower court be reversed, and the cause remanded.
      <@=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    CANNON v. STATE.
    (No. 4945.)
    (Court of Criminal Appeals of Texas.
    March 20, 1918.)
    1. Witnesses <@=>380(5) — Impeachment^-Pri-oe Statements.
    A witness can be impeached by prior statements only when his testimony is actually prejudicial to the case of the party calling him, and such party is surprised, and so not where his testimony is neither favorable nor prejudicial.
    2. Criminal Law <@=o423(1) — Evidence-Declarations OF COCONSPIRATOE.
    Statements of another person prior to the commission of the offense are admissible; they being made under circumstances tending to show that he and defendant were coconspira-tors.
    3. Criminal Law <@=>424(3) — Evidence—Declaration of Coconspiratoe.
    Declarations of a coeonspirator, made in the absence of defendant subsequent to the completion of the crime, are inadmissible, except where they are res gestae, or made by the co-conspirator while in possession of the fruits of the crime.
    4. Criminal Law <@=>814(6) — Trial — Instructions — Conformity to Indictment-Person Unknown.
    Where one count charges intent to kill W., and another, as authorized by Vernon’s Ann. Code Cr. Proe. 1916, art. 456, “some person to the grand jury unknown,” a charge authorizing conviction if intent was to kill W. “or another person” is improper; the charge should conform to the indictment.
    Appeal from District Court, Motley County; J. H. Milam, Judge.
    C. I. Cannon was convicted of poisoning a reservoir with intent to kill and injure, and appeals.
    Reversed and remanded.
    Bouldin & Surles, of Matador, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

The appellant was charged with poisoning a reservoir of water with intent to kill and injure persons to the grand jurors unknown, and in another count with intent to injure and kill W. W. Waldrup. His trial resulted in a conviction and sentence to confinement in the state penitentiary for a period of four years.

The witness Edwards, while a convict in the penitentiary, made and swore to a statement in writing containing facts incriminating appellant. The state introduced him as a witness, and he failed to give any testimony either favorable or derogatory to the state. He was then required, over the objection of the appellant, to identify the written statement and to testify as to its contents and that he made it in the absence of appellant and while he was confined in the penitentiary. He added on cross-examination that it was made for the purpose of securing his release, and that it was not true. This evidence was hearsay. The only rule of law of which we are conversant which would permit testimony of this character to be introduced would be occasioned by circumstances authorizing the party introducing the witness to impeach him by showing he had made contradictory statements. This can only be done when the witness gives testimony which is actually prejudicial to the case of the party offering him, and when such party is surprised by his adverse testimony. Wharton’s Criminal Evidence, § 484a, p. 1003, vol. 1; Bailey v. State, 37 Tex. Cr. R. 579, 40 S. W. 281; Smith v. State, 45 Tex. Cr. R. 520, 78 S. W. 519; Skeen v. State, 51 Tex. Cr. R. 39, 100 S. W. 770. In Branch’s Ann. P. C. p. 95, § 164, there are collated a great number of eases supporting the rule stated.

We think the objection to the part of the testimony of R. H. Howell to statements which he claims were made to him by W. R. Tolbert prior to the time the offense was committed- was not well taken. The alleged statements were made under circumstances tending to show that Tolbert and appellant were coconspirators.

The testimony of the witness Howell relating to alleged conversations with Tolbert subsequent to the commission of the offense, we think, were obnoxious to the rule which rejects the declaration of a coconspirátor made in the absence of the accused subsequent to tlie completion of tlie crime to which the conspiracy related. Draper v. State, 22 Tex. 400, and other cases listed in Branch’s P. C. p. 354, §i 695. There are exceptions to this rule, admitting declarations which are res gestas or made hy the cocon-spirator while in possession of the fruits of the crime. Eggleston v. State, 59 Tex. Cr. R. 551, 128 S. W. 1105, and other cases cited in Biranch’s Ann. P. O. § 695, supra. The facts involved do not, in our opinion, come within the exception.

The court submitted to the jury two counts of the indictment only, namely, that charging the poisoning with intent to kill Waldrup, and that charging poisoning with intent to kill some person to the grand jurors unknown. The matter was submitted to the jury in a paragraph authorizing conviction if the poisoning was to “injure or kill W. W. Waldrup or any other person.” Complaint is made of that part charging “any other person.” Our law (article 456, O. O. P:) requires the name of the person intended to be injured to be set out, if known, but if unknown to the grand jurors that fact may be alleged, but it must be proved. Vernon’s C. C. P. p. 202; Brewer v. State, 18 Tex. App. 456. We do not think that a charge authorizing the jury to convict if the intention was to kill “any other person” would be justified under this allegation. The charge should conform to the indictment, namely, instruct that the conviction would be authorized if the act was done with the intent to injure some person to the grand jurors unknown. Such a charge, however, should not be given unless there was proof of the fact.

Because of the errors pointed out, the judgment of the lower court is reversed, and the cause rerbanded.

PRENDERGAST, J., absent.
      <g=»For other cases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    HOUSTON v. STATE.
    (No. 4739.)
    (Court of Criminal Appeals of Texas.
    Jan. 16, 1918.
    On Motion for Rehearing, April 10, 1918.)
    1. Witnesses ¡@=>345(2) — Impeachment — Drunkenness.
    That a witness in a murder case was arrested for drunkenness does not show moral turpitude, and is not admissible, except that drunkenness at the time of the homicide would be relevant as bearing on knowledge- of the facts.
    2. Criminal Law ¡@=3404(3) — Evidence—Intent — Weapons.
    Where defendant set up self-defense, the knife with which the killing was done was admissible to show intent, under Vernon’s Ann. Pen. Code 1916, art. 1147, where it was not shown to be a deadly weapon per se.
    3. Criminal Law ¡@=>1170(1) — Harmless Error-Evidence.
    Where it was undisputed that deceased was a quarrelsome and dangerous man, defendant was not harmed by exclusion of more evidence on such matter.
    4. Homicide ¡@=>300(2) — Self-Defense — Instructions.
    It was not error to refuse to specially charge that a man living with his wife in a house of ill fame was just as much entitled to defend himself from unlawful attack as any one else, although some of the jurors had stated that such fact would influence them.
    5. Criminal Law ¡@=>1169(1) — Evidence — Harmless Error.
    Where the record plainly showed that deceased was interested in, and lived at a house of, ill fame, it was not prejudicial to refuse evidence that he received part of the money earned by the women of the house.
    6. Jury ¡@=>131(3) — Examination—Disqualification.
    Where defendant lived in house of ill fame with his wife, it was proper to ask the jurors if such fact would influence them, as a basis for a peremptory challenge, but not for' disqualification.
    On Motion for Rehearing.
    7. Jury ¡@=>131(15) — Examination — Hypothetical Questions.
    The trial court in its discretion may refuse to allow jurors to be asked questions in hypothetical form.
    Appeal from District Court, Tarrant County; R. E. L. Roy, Judge.
    Seibert Houston was convicted of manslaughter, and he appeals.
    Affirmed.
    Mays & Mays, of Et. Worth, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was indicted for the murder of Sam Brown, convicted of manslaughter, and his punishment assessed at five years’' confinement in the state penitentiary.

Appellant killed deceased by stabbing him with a knife. The homicide took place at a house of ill fame kept hy a woman named Miller, at which house appellant and his wife at the time resided. The state’s theory and evidence was that appellant was intoxicated, and attacked the deceased without provocation. Appellant claimed to have acted in self-defense.

One of the witnesses, May Stokes, was a common prostitute and an inmate of the house at which the homicide took place. Appellant’s bill of exceptions complains of the refusal of the court to allow him on cross-examination to show by her that she had been arrested for drunkenness several times in the preceding six months. The offer was not to prove that she was drunk at the time of the homicide. This would have been admissible as testing her knowledge of the facts. Green v. State, 53 Tex. Cr. R. 490, 110 S. W. 920, 22 L. R. A. (N. S.) 706; Wallace v. State, 65 Tex. Cr. R. 654, 145 S. W. 925; Lewis v. State, 33 Tex. Cr. R. 618, 28 S. W. 465. Proof, however, that she had been arrested for drunkenness on other occasions would be proof that-she was charged with a misdemeanor not involving moral turpitude, which, under the decisions of this court, is not receivable. Branch’s Ann. P. O. pp. 102, 103, §§ 168, 169, and cases cited. Appellant insists that the fact that the witness being a woman and in the habit of getting drunk would have tended to discredit her testimony beyond the point that it would have discredited by proof which was made that she was a prostitute. We think, as stated, that the evidence was not admissible. It would have been hut cumulative of the fact testified to by the witness that she was in the habit of drinking intoxicating liquors.

Complaint of the exhibition of the knife which was used in killing of deceased is made. It was not shown to be a deadly weapon per se, and was an element of evidence to be considered in determining the intent of the appellant, made so by statute. Article 1147, P. C. Appellant relies upon the cases in which it has been held erroneous to introduce the clothing of deceased in evidence. These cases will he found to reject such evidence only when it tends to prove no controverted fact, and to receive it when it does tend to make such proof. The knife in question, we think, comes within the latter rule, particularly under the statute mentioned and the authorities construing it. Vernon’s P. C. p. 717. See, also, Branch’s Ann. P. C. p. 1031, § 1855; Wharton’s Cr. Ev. § 311, vol. 1.

There is another bill complaining of the failure of the court to permit appellant to prove by the witness Miller that the deceased had the reputation, when under the influence of intoxicating liquor, of being a quarrelsome and dangerous man. This fact was proved by a number of witnesses, and, so far as we can discern from the record, is not a controverted issue. From the record it appears that the deceased bore the reputation of being a violent, dangerous, quarrelsome man, drunk or sober. Under the circumstances the bill shows no harmful error.

Another bill complains that appellant desired to ask several witnesses the general reputation of deceased in the neighborhood where he lived with reference to being of a quarrelsome and fighting disposition. The court qualifying the bill says that he offered to permit proof by the witnesses that deceased had the reputation of a fighting and dangerous man. A number of witnesses testified that deceased was a quarrelsome, dangerous fighting man. Some of them qualified it by saying that he was such when he was under the influence of intoxicating liquor. Several of these witnesses testified to specific instances in which the deceased manifested a fighting and quarrelsome 'disposition. Appellant testified to a number of instances himself. Proof was undisputed that deceased had been drinking on the day of the homicide. Some of the witnesses testified that he was not drunk, but none testified to his good character as a peaceable man, nor disputed the fact that he was a quarrelsome, fighting man.

The state asked some witnesses if appellant had not lived in' adultery with his wife prior to their marriage. This was excluded, and the prosecuting attorney in arguing the case stated “they lived together as husband and wife before they were married.” The bill shows that the court orally instructed the jury not to consider this remark, but refused written instructions to that effect. It appears, after this bill was allowed, the record in the court below was corrected so as to show that a special charge requesting the withdrawal of this remark, was given by the court to the jury, and by motion for certiorari, which was granted, the record here was corrected. The undisputed evidence was that appellant and his wife were living in a house of ill fame at the time of the homicide; that the wife had preceded her husband there, and there was evidence that he knew of the character of the premises and the reputation of the keeper of the house, Mrs. Miller, and that it was a house of prostitution. The record shows without objection that appellant’s wife was living with Mrs. Miller at the time of his marriage. Attention to this is directed in the court’s qualification to the bills under discussion. Appellant claimed that his wife had gone to the house of Mrs. Miller while he was away from home, and that he had gone there a month or six weeks before the homicide and persuaded her to go back with him to keeping house, but that, not having the money to make the necessary preparation at that time, they agreed to live together at Mrs. Miller’s house in a room which they rented, and did live there during the time intervening up to the time of the homicide. There was evidence that during her stay there the wife of appellant pursued her avocation as a common prostitute with appellant’s knowledge and consent. Brown, the deceased, was a cousin of appellant, and it appears was or had been living with Mrs. Miller and putting in a good portion of his time there. On the day of the homicide appellant went to the house, and in his wife’s room found a man asleep on her bed. He (appellant) as claimed by the state's witnesses, was drunk, which was denied by him. He ordered the man out, and was having a wordy altercation with his wife when deceased went in the room to quiet the disturbance, as claimed by the state, and while in there he and appellant had words, deceased going into the kitchen of the house and appellant also going therein. Appellant claimed that when deceased came in the room where he was that he cursed him, stating, “This is our house, and I am running it,'’ and stating that if appellant’s wife stayed there she had to hustle; that he (deceased) was broke and had to have money; that as deceased went out he said something to the wife of appellant, which appellant did not hear; that when he reached the kitchen deceased attacked him, and he cut him to save his life. He offered proof by one of the witnesses that deceased received part of the money which was earned by the women in the house, and also claims that his special charge, to the effect that the jury, could not consider the character or reputation of the house in which the homicide took place, or the parties therein, as in any manner abridging the defendant’s right of self-defense, but that his right to defend against an unlawful attack would be the same as any other place under the circumstances. The harm of refusing this charge, appellant insists, was emphasized by the fact that in selecting the jury a number of them were disqualified by stating that, if it should develop that appellant was living in a house of prostitution, it would influence them. After excusing several jurors on this ground the court declined to permit the same question to be asked further. We think this question would have been a proper one not for a disqualification, but as basis for a peremptory challenge. The bill, however, does not raise the question as to error in permitting the question, but refers to it only as emphasizing the necessity for the special charge mentioned. The court’s charge does not in any way qualify appellant’s right of self-defense, and is not complained ol’ as doing so. Under these circumstances we do not think the court committed error in refusing the special charge, nor in rejecting the testimony mentioned. The record indicates that deceased was interested in the house. That fact, however, it seems would not bear on the issue of self-defense, and a verdict of manslaughter was rendered, though the facts immediately attending the homicide as detailed by the state’s witness showed an unprovoked assault by appellant. The environments and relation of the parties must have induced the jury to find the lower grade of unlawful homicide. The verdict excludes the idea of any prejudice on the part of the jurors.

The judgment of the lower court is affirmed.

On Motion for Rehearing.

The original opinion deals' with all questions that are raised in the motion for rehearing except that involved in appellant’s eleventh bill of exception. This bill relates to the question asked in selecting the jury, which was in 'substance like one discussed in the original opinion. We have reviewed the record in the light of the motion for rehearing, and are unable to reach a conclusion different from that therein expressed.

The eleventh bill of exception, in substance, complains that after the court, at appellant’s request, had beldi disqualified a number of jurors who answered in an affirmative manner a question propounded by appellant, it declined to permit the same question to be propounded further for the purpose of disqualification. The question, in substance, was an inquiry whether, if the court instructed them that insulting remarks made by deceased to the wife of appellant might reduce the grade of the offense from murder to manslaughter, and it appeared from the evidence that the homicide took place while the appellant and his wife were living in a house of prostitution, they would try the appellant just like they would try any other man who was not living in a house of prostitution. The question as propounded was hypothetical, a character of question which it seems the court has discretion to refuse to permit in examining jurors on their voir dire. ■ Thompson on Trials, §§ 101-104, vol. 1, p. 114; Railway v. Terrell, 69 Tex. 650, 7 S. W. 670. The manner of examining jurors, even for the purpose of peremptory challenge, is necessarily one in which the trial court has some latitude in the exercise of discretion. Cyc. vol. 24, p. 328. The question propounded might have been modified so as to elicit the information which appellant desired with reference to the mental attitude of the jurors with reference to the trial of appellant; and, if it had been so modified, and the purpose of it had been for the use of appellant in exercising his peremptory challenges, we think he would have been entitled to the information. The scope of inquiry for the purpose of obtaining information from jurors as a basis for peremptory challenge is quite broad. This inquiry as shown by the bill, however, was not made for that purpose, but as a basis for disqualification of the jurors. The question was addressed to the attitude of the jurors with reference to according the appellant the benefit of the statute with reference to insulting remarks to a female relative in deciding whether the homicide was murder or manslaughter. The verdict of manslaughter would seem to indicate that appellant was not harmed by the action of the court complained of in this bill.

The motion for rehearing is overruled.

PRENDERGAST, J„ absent.
      ¿£=>:For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    LEWIS v. STATE.
    (No. 4951.)
    (Court of Criminal Appeals of Texas.
    March 20, 1918.)
    1. Criminal Law <&wkey;1090(7) — Appeal—Questions Review able.
    In a prosecution for murder, the refusal of a continuance will not he reviewed in the absence of a bill of exceptions.
    2. Criminal Law <&wkey;1090(13) — Appeal — Questions Review able.
    In a prosecution for murder, a statement by the assistant prosecuting attorney commenting on the failure of defendant to deny that he sign-eel the confession will not he reviewed in the absence of a bill of exceptions.
    Appeal from District Court, Morris County; J. A. Ward, Judge.
    Abbie Lewis was convicted of murder, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of murder; his punishment being assessed at 50 years’ confinement in the penitentiary.

He failed to reserve exceptions to the charge of the court in any particular. Error is alleged on the part of the court in refusing to continue the case. It is sufficient answer to this to state that a bill of exceptions was not reserved, therefore that matter is not reviewable.

Error is also alleged because the court-permitted the state to offer in evidence a written instrument purporting to be the confession of appellant in writing made to one of the counsel for the state who was assisting the district attorney in prosecuting defendant, and in stating, in this connection, to the jury;

“Defendant signed this confession; he is sitting here now; if he did not sign it, why didn’t he get on the witness stand and testify that he did not sign it?”

This is a ground of the motion for new trial, and is not verified by a bill of exceptions. In order to bring matters of this sort in review on appeal they may be properly verified, otherwise they cannot be reviewed. The grounds of the motion do not allege the fact that appellant did not take the witness stand. The purported confession is not set out as a part of the grounds of the motion for new trial. We would presume, in the absence of exceptions properly verified, that there was no error in admitting the confession, nor in the remarks of counsel in connection with it.

The judgment will be affirmed.

PRENDERGAST, J., absent.
      <g^>For other eases see same topic and KEV-NUMBER in all Key-Numbered Digests and Indexes


text:
    GRIFFIN v. STATE.
    (No. 4733.)
    (Court of Criminal Appeals of Texas.
    Dec. 5, 1917.
    On Motion for Rehearing, March 20, 1918.)
    1. Criminal Law <&wkey;761(6) — Instructions— Assumption as to Facts.
    In a prosecution for incest, a charge that if the jury believed that the parties were uncle and niece they would be within the statute was not erroneous, since the judge did not assume or charge the jury as to the existence of facts.
    2. Criminal Law <&wkey;1093 — Appeal and Error-Bills op Exception.
    In a prosecution for incest, a bill of exception reciting that the court permitted a witness to testify that defendant had always been called a certain person’s son was insufficient as being too indefinite.
    3. Criminal Law &wkey;>1093 — Appeal and Error-Bills op Exception.
    In a prosecution for incest, a bill of exception reciting that a witness was asked if it was not the practice for children to adopt the name of their stepfather, and that he'would have answered in the negative, was too indefinite for consideration.
    4. Criminal Law &wkey;>1093 — Appeal and Error-Bills op Exception.
    In a prosecution for incest, a bill of exception that a witness had testified that her daughter disappeared in a certain county and could not be found was insufficient as being too indefinite.
    On Motion for Rehearing.
    5. Incest <&wkey;16 — Instructions — (Relationship op Parties.
    In a prosecution for incest it was error to submit the relationship of niece; there being evidence that the relationship was half-niece, in view of statute defining the crime which makes a distinction between niece and half-niece.
    Appeal from District Court, Titus County; J. A. Ward, Judge.
    Henry Griffin was convicted of incest, and he appeals.
    Reversed and remanded.
    I. N. Williams, of Bit. Pleasant, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Incest was charged, the basis of which was that appellant and the girl with whom the incestuous intercourse is charged to have occurred were uncle and niece. The court charged the jury that, if they believed this relationship existed, it would be sufficient within the statute of incest to prohibit carnal knowledge between parties. This is a matter of law under the statute, and the court was not in error in thus instructing the jury. The court did not assume nor charge the jury that the facts existed. He simply charged the jury that, if the facts did exist, as a matter of law this would bring the parties within the statutory inhibition.

There are some bills of exception which are too indefinite for consideration. Bill No. 1, for instance, recites that the court permitted the witness G. W. Childress to testify that defendant has always been called Joe Griffin’s son.

“I have known Mm ever since he was a year or two old, and he was then wearing the name of Griffin, and he was always known as Joe Griffin’s son.”

How this arose or how it came about in the trial of the case is not stated. It may have been entirely admissible. It was evidence from a family relation who knew all the facts. Childress was related to these parties, as shown by the facts, and had known them practically all their lives, and testified as did other witnesses to facts which showed the relationship between the parties as charged in the indictment.

Another bill recites that this same witness Childress was asked by appellant on cross-examination if it was not a practice for children to adopt the name of their stepfather. Witness would have answered in the negative had he been permitted to answer, but the state objected and the court sustained the objection and a reply was not elicited. What was the object and purpose of this, or what effect it would have, is not stated, except the general proposition that it was in rebuttal to witnesses’ testimony that defendant had gone by the name of Griffin. Had the witness answered it would have been in the negative, and could not have been of any advantage, so far as the bill shows, to appellant.

The witness Etta Childress .testified that her daughter disappeared in Red River county from her home and that she could not find her. The objection was that defendant was not charged with the crime in Red River, and was not charged with abduction. This is the bill, and it is .too indefinite. As the bill presents itself, there is nothing upon which this court can base a conclusion. The facts would indicate, if we refer to the testimony, that the girl named as the incestuous paramour of appellant was sent from Red River county to Titus county by defendant, and he followed her and had incestuous intercourse with her in Titus county. It is unnecessary to discuss those matters further. The evidence is ample to show not only the relationship, but clearly demonstrates the fact that they cohabited and held -themselves out as husband and wife in Titus county.

The judgment is affirmed.

On Motion for Rehearing.

On a former day of the term the judgment herein was affirmed. Appellant has filed a motion for rehearing.

The indictment charges incest between appellant and his niece. There is evidence to show that she was the daughter of his half-sister, making her only his half-niece instead of full-blood. The contention is now that the court erred in submitting the relationship of the parties under the allegations of the indictment. Upon inspection of the statute, in view of the evidence, we are of opinion that appellant is correct, and that the affirmance should lie set aside. The statute provides that where a party marries his niece or half-niece he would be guilty of incest, or where he should carnally know his niece or half-niece. Inasmuch as the Legislature saw proper to make these distinctions, we are of opinion that the charge of the court should have adhered to the statute and submitted to the jury the relationship of half uncle and half niece. It is unnecessary to discuss the other questions in the case.

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

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


text:
    PATTERSON v. STATE.
    (No. 4948.)
    (Court of Criminal Appeals of Texas.
    March 20, 1918.)
    1. Judges <&wkey;47(l) — Disqualification — Counsel foe State — Assistant Counts Attorney.
    The assistant county attorney who, under the duties prescribed by Pen. Code 1911, arts. 426-428, assisted the grand jury in investigation of the case, and wrote the indictment returned, which was superseded by another found by the succeeding grand jury, is, within Code Or. Proe. 1911, art. 617, disqualifying a judge to sit in a case where he has been counsel for the state.
    2. Judges <&wkey;56 — Disqualification—Effect on Order — Change of Venue.
    An order changing the venue made on the judge’s own motion under Code Or. Proc. 1911, § 626, being made by a judge disqualified to sit in the case, is void; judicial discretion being involved.
    3. Witnesses <&wkey;274(2) — Character Witnesses — Cross-Examination.
    Witnesses for the state who have testified to their knowledge of the good reputation of deceased as to peace may, to test their knowledge and credibility, be asked on their cross-examination as to having heard or known of deceased having killed a man, shot another, and being engaged in a number of fights.
    Appeal from District Court, Parker County; E. O. McKinsey, Judge.
    N. C. Patterson was convicted of murder, and appeals.
    Reversed.
    Simpson & Estes, of Et. Worth, Preston Martin, of Weatherford, and A. L. Moore and Charles T. Prewett, both of Et. Worth, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant’s conviction was for murder, and his punishment assessed at confinement in the state penitentiary for 20 years.

The homicide took place in Tarrant county in November. The grand jury returned into the district court of the Sixty-Seventh judicial district a bill of indictment charging appellant with murder. At that time the Hon. Geo. E. Hosey was assistant county attorney, and pursuant to his duties as such assisted the grand jury in investigation of the case and wrote the indictment returned. At the succeeding term of court, on December 4, 1916, the court organized a grand jury which was composed of the same, or substantially the same, men that composed the grand jury for the November term, and which returned the indictment mentioned, and appellant was reindicted for the same offense, and about 10 days later the first indictment found was dismissed. After the organization of the criminal district court of Tarrant county the cause was transferred to that court, and Hon. Geo. E. Hosey became judge thereof.

Appellant makes the point that his connection with the case as assistant county attorney operated as a disqualification of Judge Hosey to sit in tile case. The Constitution (article 5, § 11) provides, among other things, as follows:

“No judge shall sit in any case where * * * he shall have been counsel in the case.”

Article 617, C. C. P., provides:

“No judge * * * shall sit in any case * * * where he has been of counsel for the state or the accused.”

Articles 426-428, P. C., prescribe the duties of the county attorney with reference to the grand jury, providing in substance that he may be present except when the matter of finding indictments is under discussion or the grand jury is voting on the same, may examine witnesses, advise as to the proper mode of interrogating, and with reference to questions of law. This authority has been construed to extend to the assistant county attorney. Moody v. State, 57 Tex. Cr. R. 76, 121 S. W. 1117.

We find in the record this statement by the county attorney of Tarrant county:

“After the Hon. Geo. E. Hosey, the present judge of this court, was appointed, I suggested to him that he was disqualified in this case by reason of the fact that he was a member of the county attorney’s force at the time defendant was indicted for this murder, and therefore he would be disqualified to try the case.”

This, we think, is the proper construction of the law. The exact point on similar facts was decided by this court in an opinion by Judge Hurt in Terry v. State, 24 S. W. 510, where the facts alleged were that the district attorney took the complaint, reduced it to writing, and caused it to be sworn to and attested. This was the beginning of a prosecution under which the appellant, Terry, was afterwards convicted of a felony. The court said:

“If it should appear that ho has received the complaint, reduced it to writing, .had it signed and sworn to, and attested same, the law requiring him to do these things as counsel for the state, his oficial acts as attorney * * for the state having relation to this particular, case, would make him of counsel for the state in this case. The motion should have been sustained.”

See, also, Graham v. State, 43 Tex. Cr. R. 110, 63 S. W. 558; State v. Burks, 82 Tex. 585, 18 S. W. 662.

The trial judge having announced his intention to change the venue of the case upon his own motion, the county attorney having suggested the propriety thereof on the ground of previous trials, the appellant opposed the action of the court upon various grounds set out in writing. The court heard evidence upon this opposition, disregarded it, and ordered the venue changed, appellant excepting.

The action of a disqualified judge with reference to an order such a judge cannot make is void. Chambers v. Hodges, 23 Tex. 105; Taylor v. Williams, 26 Tex. 583; Abrams v. State, 31 Tex. App. 449, 20 S. W. 987. It follows that if the order changing the venue was one which the judge was disqualified from making it is void. In the case of Cock v. State, 8 Tex. App. 666, is used the following expression with reference to a disqualified judge:

“He would not be incompetent to preside in taking incidental orders as, for instance, an order granting a change of venue.”

The only question then arising touching the disqualification of the trial judge was whether he could receive the indictment, and the court determined, we think, correctly that he could do so. The expression with reference to change of venue was not necessary in deciding the case. At the time Cock’s Case was tried, there was in force a statute obliging the trial judge to order the venue changed in a case which he was disqualified to try, leaving him without discretion to refuse to do so. Article 1417, Paschal’s Ann. Digest of Laws, § 22851; Paschal’s Digest of Decisions. The present statute (article 618) contains the following:

“Whenever any case or cases, civil or criminal, are pending in which the district judge is disqualified from trying the same, no change of venue shall be made necessary thereby.”

This court, in the case of Fellrath v. Gilder, reported in 1 White & W. Civ. Cas. Ct. App. 599, § 1060, discussing a similar question, expressed itself as follows:

“A certiorari granted by a county judge thus disqualified is a null and void act. * * * The disqualification of the judge extends to all such judicial orders, judgments, or fiats as involve the exercise of the power which is conferred upon the judge to hear and determine upon the rights * * * which may be involved, in the ease which shall be presented for his action.”

A distinction between ministerial acts, or acts not involving judicial discretion, which may be done by a disqualified judge, and acts involving judicial discretion which he cannot perform, is referred to in Rains v. Simpson, 50 Tex. 495, 32 Am. Rep. 609, from which we quote as follows:

“Tho distinction between the two is thus defined: ‘Where the law prescribes and defines the duties to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment, the act is ministerial ; but where the act to be done involves the exercise of discretion or judgment, it is not to be deemed merely ministerial.” Citing Commissioner v. Smith, 5 Tex. 471; Arberry v. Beavers, 6 Tex. 467, 55 Am. Dec. 791.

See Cyc., vol. 23, p. 598.

In State v. Burks, 82 Tex. 585, 18 S. W. 662, a quo warranto proceeding, the facts were: That in a contemplated election upon the question of incorporation of a town the law firm of which the person who was after-wards judge was a member was consulted. He received no compensation and gave no opinion as to whether or not it would be legal or illegal to take in so much territory. He had nothing to do with the matter after the suit in which the question arose began. The court says:

“The questions presented for our decision are whether the judge was disqualified under tho Constitution, and whether such disqualification embraces his authority to make the order to file the information as well as to preside at the trial of the canse.”

The court held this clearly an exercise of judicial discretion, saying:

“No distinction can be recognized between the authority of a disqualified judge to make such ,an order and to preside at the trial of the cause.”

It was held that the judge properly held himself disqualified, citing Sleven v. Wheeler, 58 Tex. 23.

Article 626, C. C. P., is as follows:

“Whenever in any cause of felony the district judge presiding shall be satisfied that a trial, alike fair and impartial to the accused and to the State, cannot, from any cause, be had in the county in which the case is pending, he may, upon his own motion, order a change of venue to any county in his own, or in an adjoining district, stating in his order the grounds for such change of venue.”

It has been held that the discretion thus given the judge to change the venue on his own motion is an act of judicial discretion, not an arbitrary or personal one. Mayhew v. State, 69 Tex. Cr. R. 187, 155 S. W. 191; Walker v. State, 42 Tex. 360. The judge must be satisfied that a trial alike fair and impartial to the accused and the state cannot be had, and must determine which of a number of counties shall be selected within which the trial on change of venue shall be had. These are not ministerial acts. The making of an order changing the venue is not a mere incidental matter. It is an act involving the exercise of judicial discretion and judgment, and one which a judge who is disqualified “to sit in the case” cannot perform.

The assistant attorney general concedes that the order changing the venue in this case is void, because it was made by a disqualified judge. Other cases illustrating 'the point are: Taylor v. State, 195 S. W. 1147; Garrett v. Gaines, 6 Tex. 435; Jouett v. Gunn, 13 Tex. Civ. App. 84, 35 S. W. 194; Comstock v. Lomax (Civ. App.) 135 S. W. 185; Fellrath v. Gilder, 1 White & W. Civ. Cas. Ct. App. § 1060; Kalklosh v. Bunting, 40 Tex. Civ. App. 233, 88 S. W. 389; Seabrook v. Bank (Civ. App.) 171 S. W. 247; Jirou v. Jirou (Civ. App.) 136 S. W. 493; City v. Bank (Civ. App.) 71 S. W. 799; Burks v. Bennett, 62 Tex. 277; Chambers, v. Hodges, 23 Tex. 112; Gains v. Barr, 60 Tex. 676; Dol-sons v. Sheridan Co. (Civ. App.) 178 S. W. 663; Fechheimer v. Washington, 77 Ind. 366; Morrissey v. Gray, 160 Cal. 390, 117 Pac. 438; Dodd v. State, 5 Okl. Or. 513, 115 Pac. 632; Erevert v. Swift, 19 Nev. 363, 11 Pac. 273; People v. De La Guerra, 24 Cal. 73.

One of the issues developed on the trial of the cause was the general reputation of the deceased as to whether he was a dangerous man or otherwise. In cross-examination of one of the witnesses who testified to the good reputation of the deceased in this respect, it was developed that deceased had killed a man, shot another, and had a number of fights. Appellant sought to interrogate other witnesses for the state who testified to the good reputation of the deceased in the respect mentioned, whether they had heard of these occurrences or knew of them. This testimony was excluded upon grounds suggested by the court and made by the prosecuting attorney. The state’s witness having testified to his knowledge of’ the good reputation of deceased, and there being evidence upon which to base the inquiry, we think it within appellant’s rights in cross-examining the witness to inquire whether or not he had heard of the incidents, for the purpose of testing the knowledge and credibility of the witness. From Wharton’s Crim. Ev. vol. 1, p. 1013, we quote as follows:

“So a character witness who has testified as to the good or bad character of the witness whom he is called upon to sustain or impeach may be cross-examined as to his knowledge of the acts that contradict his testimony,’ not for the purpose of establishing such acts, but to test the witness’ credibility, so the jury may be assisted in determining the weight to be given his testimony.”

This text is supported by the opinion of this court in Forrester v. State, 38 Tex. Cr. R. 248, 42 S. W. 400. See, also, Rice on Crim. Ev. § 375. The idea expressed is that a character witness on direct examination may not be petmitted to detail specific acts derogatory to the character of the person in question, hut when he has testified to his knowledge of the character he may be cross-examined, and as to the cross-examination the text last cited uses the following language:

“When a witness has testified on his examination in chief that the person as to whose character the inquiry is instituted bears a good character, his opinion and the value of it may be tested by asking the witness on his cross-examination whether he has ever heard that the person whose character is in question has been accused of doing acts wholly inconsistent with the character which he has attributed to him.”

Under these authorities we think there was error in the limitation placed upon the cross-examination.

Because of this error, and that involved • in the change of venue by the disqualified judge, a reversal of the judgment of the lower court is ordered.

HRENDERGAST, J„ absent.
      ¿&wkey;For other oases see same topic ana ItEY-NUMBBR in all Key-Numbered Digests and Indexes


text:
    THOMPSON v. STATE.
    (No. 4894.)
    (Court of Criminal Appeals of Texas.
    Feb. 13, 1918.
    On Motion for Rehearing, March 29, 1918.)
    1. Criminal Law <&wkey; 1087(1) — Notice of Ap-peaiA-Necessity.
    Where the record shows no notice of appeal, the appeal will be dismissed.
    2. Criminal Law &wkey;1087(2) — Sufficiency of Record — Filing Exceptions Beyond Term Time.
    Where it appears from the record on appeal that statement of facts and bill of exceptions were filed beyond term time, an order of court for such filing should be shown.
    On Motion for Rehearing.
    3. Criminal Law <&wkey;1131(7) — Defects in Transcript — Cure.
    Defects in transcript of appeal may be cured and dismissed case reinstated, where defects were omissions of the clerk in failing to copy the necessary papers into the transcript.
    4. Criminal Law <&wkey;1066 — Appeal—Exceptions — New Trial.
    Although an order was entered authorizing the filing of statement of facts and bills of exception after court had adjourned, this would not apply to evidence taken on motion for new trial, exceptions to which must be filed during term time.
    Appeal from McLennan County Court; James P. Alexander, Judge.
    C. C. Thompson was convicted of aggravated assault, and he appeals.
    Affirmed.
    Holt & Shires and G. T. Shires, all of Waco, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of aggravated assault, and awarded nine months’ imprisonment in the county jail.

There is a statement of facts and a bill of exceptions in the record, but they were filed after the adjournment of court, and the record contains no order allowing such filing. The record is also without notice of appeal. On account of the want of this notice the appeal will be dismissed.

If it is sought to reinstate the appeal by showing notice of appeal was duly given, we call attention to the fact that it should be made to appear, if the record so shows, there was a proper order entered below authorizing the filing of the statement of facts and bill of exceptions beyond term time. It may be also noticed in this connection that the statement of facts adduced in support of appellant’s motion for new trial was not filed in term time.

As the record stands the appeal will be dismissed.

On Motion for Rehearing.

On the former day of the term the appeal herein was dismissed. The defects in the transcript have been cured, and it is now shown it was an omission of the clerk in failing to copy the necessary papers in the transcript. The case will therefore be reinstated.

It was intimated in the former opinion that, inasmuch as the testimony set out in the record was taken on motion for new trial, it would not be considered because filed subsequent to the adjournment of the court. There was an order entered, it seems, authorizing the filing of statement of facts and bills of exception after court had adjourned, but this would not apply to evidence taken on motion for new trial. This must be filed during term time. The decisions all seem to be in accord on this question; therefore the evidence as introduced in regard to the motion for new trial will not be considered. Without this there is nothing for the court to review, and the judgment will be affirmed.

PRENDERGAST,! X, absent.


text:
    HINES v. STATE.
    (No. 4913.)
    (Court of Criminal Appeals of Texas.
    Feb. 20, 1918.
    On Motion for Rehearing, April 10, 1918.)
    1. Constitutional Law <&wkey;53 — Judicial Power — Ministerial Acts — Local Option Elections.
    Declaring_ the result of a local option election and the issuance of an order prohibiting the sale of intoxicants by the commissioners’ court, under Vernon’s Say les’ Ann. Civ. St. 1914, art. 5721, are merely ministerial, and not judicial, acts.
    On Motion for Rehearing.
    2. Constitutional Law &wkey;>61 — Legislative Power — Ministerial Acts — Local Option Elections.
    So declaring the result of election and the issuance of such order are merely ministerial, and not legislative, acts.
    3. Intoxicating Liquors <&wkey;36(5) — Local Option Elections — Statutes.
    EVen if the Legislature did not have the power to authorize the commissioners’ court to issue an order prohibiting the sale of intoxicants as provided by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5721, it is practically immaterial, as the mere declaration by such body that the results of an election were in favor of local option would put the law in effect.
    Appeal from District Court, Ellis County; F. L. Hawkins, Judge.
    Bummer Hines was convicted of violating the local option law, and he appeals.
    Affirmed.
    Tom P. Whipple, of Waxahachie, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of violating the local option law, and allotted two years’ confinement in the penitentiary.

The only question suggested for revision is the alleged unconstitutionality of the local option law, in that it is invalid because it authorizes the declaration of the result of the vote and ordering its publication by the commissioners’ court. The proposition is made that this, is a judicial act, and therefore not within the authority of the Legislature to grant to the commissioners’ court. We are of opinion that this proposition is not sound. It is not a judicial act as contended hy appellant. It is ministerial. The Legislature had the power to authorize the commissioners’ court to declare the result of this election and order its publication. This does not determine the matter judicially. It only declares the result as found upon the face of the returns. The commissioners’ court would have no authority to go into the ballot boxes and count the votes to determine the matter. That only could be done where there was a contest, in the proper tribunal, in case the election was contested. This must be done by a direct proceeding as provided by the statute. The commissioners’ court simply determines from the face of the returns the result of the election. In all elections there must be some means provided to ascertain and declare the result. This is made up from the face of the returns as reported by the election officers, and is not judicial, but ministerial.

We have not thought it necessary to go into a detailed discussion of this matter, but, believing the contention of appellant to be unsound, the judgment will be affirmed.

On Motion for Rehearing.

This case was recently affirmed. Appellant files a motion for rehearing in which he says the court in writing the original opinion did not fully comprehend the question he raised attacking the constitutionality of the local option law. His contention was that the power conferred upon the commissioners’ court of prohibiting the sale of intoxicants in such' territory after the result of the election had been declared was legislative. The opinion laid down the proposition that this matter complained of in the statute was not judicial, but ministerial. Appellant contends that this did not meet his question. We disagree with him upon that, but, meeting his contention that it was legislation on the part of the commissioners’ court, we are of opinion that it was a ministerial act, and could not be legislation on the part of the commissioners’ court. That court was not attempting to pass any law; it was not attempting to do any act except that which was enacted by the Legislature and voted upon by the people in the contest in the local option election. The statute in question (article 5721) reads as follows:

“Said court shall hold a special session on the eleventh day after the holding of such election, or as soon thereafter as practical, for the purpose of opening the polls and counting the votes; and, if a majority of the votes are ‘for prohibition,’ said court shall immediately make an order declaring the result of said vote, and absolutely prohibiting the sale of intoxicating liquors within the prescribed limits, except for the purposes and under the regulations specified in this title, until such time as the qualified voters therein may at a legal election held for that purpose by a majority vote decide otherwise,” etc.

That portion of the statute which begins, “and absolutely prohibiting the sale of intoxicating liquors within the prescribed limits,” etc., appellant contends is legislation on the part of the commissioners’ court, and therefore unconstitutional. The Constitution (article 16, § 20) provides that the Legislature shall pass suitable laws whereby the qualified voters shall have the right to vote upon the prohibition of the sale of intoxicants within a given territory. This legislation, of course, must be sufficient to carry out the purpose of the Constitution to enable the voters to intelligently vote upon the question. It is the Legislature that enacts the legislation, and not the commissioners’ court. This legislation does not become final nor operative until the people have declared their wishes in regard to it at a proper election, and when this vote has been had and the result is favorable to local option, the commissioners’ court simply follows the law and obeys the mandate to canvass the vote, declaring the result and orders the prohibition of selling intoxicants. This is not legislation on the part of the commissioners’ court. They are but carrying out the law and expressed wish of the people who voted at snch election as authorized by the Legislature as to the manner of carrying on the election and the de--daring of its result. It takes the vote of the people in a given territory to put this law in operation, and the commissioners’ court has been legally selected as the proper body to carry out the provisions of the law. It is simply a ministerial matter, and in no case would be legislation by the court. That body is simply following the instructions of the Legislature as enacted into law and vitalized by the voters. A ministerial act by the commissioners’ court is not legislation. If it be conceded that the Legislature could not confer such authority upon the commissioners’ court, its act would be void as to that part, if void at all, not because the commissioners’ court entered the order, but because the Legislature of the state had no authority to make the provision. As far as the commissioners’ court is concerned, it would not be legislation, but simply obeying the will of the Legislature, voted by the people, whether that be constitutional or not. The Legislature had such authority.

Prom another view, we are of the opinion that whether the Legislature had the authority to require the commissioners’ court to enter the order of which appellant complains or not would be practically immaterial. The declaration of the result of the vote would necessarily have the same effect whether the remaining part of the order was entered or omitted. If the vote results favorably to local option, when the commissioners’ court declared that result it would necessarily follow that the law would go into operation. The fact that the commissioners’ court did declare the result favorable to local option would by itself declare that the sale of intoxicants should be prohibited and upon publishing the order by the county judge for the requisite time the law would go into effect.

From any viewpoint there is nothing serious in appellant’s contention.

The motion for rehearing will therefore be overruled.

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


text:
    SHERMAN v. STATE.
    (No. 4949.)
    (Court of Criminal Appeals of Texas.
    March 20, 1918.
    Rehearing Denied April 10, 1918.)
    1. Ceiminal Daw <&wkey;564(l) — Venue—Sufficiency of Evidence.
    In a prosecution for burglary with intent to commit theft, evidence held, sufficient to show venue.
    2. Criminal Law <&wkey;304(6) — Judicial Notice-Location of City.
    The court judicially knows that the city of Dallas is in Dallas county by reason of the statute which fixes that place as the location of the Court of Civil Appeals.
    3. Criminal Law &wkey;>l'144(6) — Review—'Venue — Presumption.
    It will be presumed that venue was proved unless it was a question of serious import .upon. the trial or unless contested or verified in a bill of exceptions.
    4. Criminal Law <&wkey;695(4) — Reception of Evidence — Objection—Form.
    Objections on criminal trial to evidence as “incompetent and prejudicial” or “immaterial, irrelevant, and incompetent” are too general for consideration if the evidence could have been admissible for any purpose.
    5. Burglary <&wkey;41(7) — Identity of Property Stolen — Sufficiency of Evidence.
    In a prosecution for burglary, where evidence tended to show that defendant stole parts of a Pittsburg water heater, it was, not necessary for conviction to show its size and number.
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    John Sherman was convicted of burglary with intent to commit theft, and he appeals.
    Affirmed.
    John White, of Dallas, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

This conviction was for burglary with intent to commit the crime of theft. While from the facts the jury could have possibly reached the conclusion that the house was not closed at the time the defendant is charged to have broken it, yet the evidence is fully sufficient to justify their finding that appellant did break the house.

It is contended that the evidence does not support the conviction in that the house is not shown to have been situate in Dallas county. We are of opinion there is no merit in this proposition. The evidence shows that the house was in the city of Dallas, and one of the witnesses shows it was in Dallas county. We judicially know that the city of Dallas is in Dallas county by reason of the statute which fixes that place as the location of the Court of Civil Appeals. But independent of such judicial knowledge, or even in the absence of testimony in the statement of facts that the house was in Dallas county, we would presume legally that it was as charged in the indictment in that county. The statute provides that the question of venue shall not he raised upon appeal unless it became an issue in the trial court properly suggested and presented in a bill of exceptions, or in some legal manner showing that it was not in Dallas county. Had the venue been a question of moment or serious import upon the trial, and that issue had been fought out on the trial of the case, suggesting that it may not have been in Dallas county, but was in some other county, the statute in such instance would not apply which requires it to be contested and verified in a bill of exceptions. In other words, this court, by the statute, will presume that the venue was proved unless the matter is properly contested or shown in some way by the record that it was not in the alleged county.

There were no exceptions reserved to the charge of the court. Some bills of exception were reserved to the admission of testimony. Bill No. 1 recites that the court erred in admitting, over defendant’s objection, testimony of the witness Baird, and the exhibition by him before the jury of certain pieces of old iron not alleged in the indictment to have been taken by the defendant from the house; defendant being the sole owner of said pieces of old iron. Objection was urged on .the ground that this testimony was incompetent and prejudicial. These constitute but general demurrers, and are not sufficient if the testimony could have been admissible on the trial for any purpose. Where evidence may be admissible for any purpose on .the trial, a general demurrer is not sufficient. But the court explains this by stating:

“These are the tools and pieces of iron taken from the pocket of the defendant by the officers at the^time of his arrest at the house.”

The bill therefore is too indefinite from any standpoint to present error of a reviewable nature.

The succeeding bill also reserved exception to the testimony of detective Baird in regard to exhibiting before the jury several pieces and parts of old iron and one rusty and worn out buggy wrench, all of which evidence was taken from defendant’s person at the time of his arrest, and was not alleged to have been taken by defendant from the burglarized house. Exception was reserved to this on the ground that it was immaterial, irrelevant, and incompetent. The evidence may have been admissible for several reasons. The grounds of objection are too general, and the facts are not sufficiently-stated in the bill to show why the introduction of this evidence was erroneous.

There is another bill to the ruling of the court permitting Police Officer Plant to testify with regard to a Pittsburg water heater torn down on the inside of the house, without showing the number and size and without showing that same was the property of the owner of the burglarized house, and also a part of and attached to the premises. This bill is vague, and does not fully state the connecting facts. Should we go to the statement of facts we would find that there was a Pittsburg water heater in the burglarized house which had been torn down. It was not necessary to show its number and size. It was in the house, and was torn down, and some parts of the heater gone. These parts seem, under the testimony, to have corresponded with some of the pieces of iron mentioned that were found in the possession of appellant. We are of opinion the case should not be reversed, and that the testimony is sufficient to show that appellant entered this house for the purpose of committing theft, and did in fact take property therefrom.

The judgment will be affirmed.

PRENDERGAST, J., absent.
      <@^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes