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

text:
    MARSHALL v. STATE.
    (No. 3759.)
    (Court of Criminal Appeals of Texas.
    Nov. 10, 1915.
    On Motion for Rehearing, Jan. 12, 1916.
    On Motion for Further Rehearing, Feb. 16, 1916.)
    Criminal Law. «=51171 — Appeal—Harmless Error.
    In a prosecution for homicide where it appeared that accused in attempting to arrest deceased on a misdemeanor charge shot him, although he did not even know deceased, a dying declaration made by deceased was excluded on objection by accused. In argument the prosecuting attorney referred to the dying declaration and stated that the reason it was not in evidence was because it had been objected to. Held that, though the prosecuting attorney referred feelingly to the evidentiary value of the dying declaration, yet as the jury were present and knew that it was excluded on accused’s objection the reference thereto in the argument was harmless, if erroneous, particularly in view of the fact that only 15 years’ imprisonment was passed as punishment.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3126, 3127; Dec. Dig. «=> 1171.]
    Harper, J., dissenting.
    Appeal from District Court, Milam County; J. C. Scott, Judge.
    E. V. Marshall was convicted of murder, and he appeals.
    Affirmed.
    J. W. Garner, of Rockdale, and Henderson, Kidd & Gillis, of Cameron, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of murder, and his punishment assessed at 15 years’ confinement in the penitentiary.

It is made to appear by the record that the deceased, Marvin Williams, and his wife had parted, and his wife had returned to her mother’s home; that deceased was living with Earl Cook. On Friday before the homicide on Monday, deceased went to the home of his mother-in-law, and there conducted himself improperly, firing off a pistol and doing other, unbecoming acts. The matter was reported to the justice of the peace, and a complaint sworn out, charging deceased with carrying a pistol. The justice issued a warrant and delivered it to the constable of the precinct, Mr. J. D. Hamilton. On Monday, when Hamilton decided to go after deceased and arrest him on the warrant, he went to the place of business of appellant and requested him to go with him. Appellant got in the buggy with Hamilton and they started, appellant being unarmed. They stopped at a drug store, and there the city marshal, John Bonds, gave appellant a pistol. When the constable and appellant arrived at Earl Cook’s they ascertained the deceased was at the home of Mr. Will Cook. They went to Will Cook’s, and the constable arrested deceased. After the arrest, the evidence conflicts as to what occurred, but all agree that deceased fled, and the con-1 I stable, and appellant pursued him. Several shots were fired, as the officers say, to frighten deceased. None of them struck deceased except one, and as to the conditions under which this shot was fired the evidence is in conflict. The state relied on the statements of deceased, admitted as dying declarations, and according to this statement appellant and deceased outran the constable; that when appellant was near to and close to deceased he stopped to reload his pistol, and said to deceased, “If you don’t stop, I will kill you,” and he (deceased) replied, “That is the only way you will get me,” when appellant shot him.

The defendant’s contention is that the first shots were fired to frighten deceased and cause him to stop; that appellant overtook him, when deceased turned and began to fight appellant; that appellant struck at him with the pistol, when it fired, and the fatal wound was inflicted. The evidence shows deceased was a strong, able-bodied man, weighing about 185 pounds, while appellant would weigh not exceeding 150 pounds.

Will Cook was permitted to testify that after deceased was carried to his home Dr. Kilpatrick was called, appellant having gone with Earl Cook after him, and the doctor told deceased, “If he had any business to attend to or wanted to see any one, he had better attend to it or see them.” Shortly after the doctor departed deceased said to witness, “Uncle Will, the doctor is just like I have been; I knew I was going to die and I want to tell you how it was done;” and then the witness was permitted to detail, over the objection of appellant, what deceased said about how the fatal shooting occurred. This occurred in the afternoon, and George Middleton was permitted to testify what deceased said to him about 7 o’clock on the evening he was shot, over appellant's objection. Middleton said he remarked to deceased, “Well, you will be sitting up in two or three days,” and deceased said, “No, I am bleeding inside; I will never sit up;” and then Middleton was permitted to testify as to what deceased said about the difficulty. The testimony of both these witnesses was objected to on the ground that no sufficient predicate had been laid to admit the statements as dying declarations. We have carefully reviewed the authorities cited by appellant, and we cannot say the court erred in admitting this testimony, although it would have been better for the state to have affirmatively shown that deceased was sane and in his right mind. This it seems to us, from reading the reeord, appears, as there is no evidence that the doctor administered to him any medicine that would and could affect his.mind, nor was the wound such a one as would affect him mentally. On another trial though, if the same objection is made I to the testimony, it would be better for the state to show by positive and affirmative testimony that deceased was conscious of approaching death and had no hope of recovery ; that the declarations were voluntarily made; that same were not made in answer to interrogatories calculated to elicit a particular statement; and that deceased was in his right mind and sane at the time he made the declarations to these two witnesses. This becomes important in this case inasmuch as deceased was carried from Roch-dale to Cameron the next day and there made a written statement to the sheriff, which was excluded by the court on the testimony of Dr. Best, whose testimony was such that it led the court to think that deceased at that time had not given up all hope of recovery, but instead seemed to have a hope of recovery if given proper treatment.

We have said this much in view of another trial, and this brings us to the question which we think requires a reversal of the case. Appellant’s counsel, in presenting the case to the jury, argued that but little weight should be given to the alleged dying declarations of deceased as testified to by Cook and Middleton; that when he made such statements he was angry, as men would be under such circumstances, and he (counsel) did not think from the testimony that deceased had given up all hope of recovery, and the statement was not made under the conditions and circumstances which showed that deceased was conscious of approaching death, and with the seriousness which should attend such statements. We think these comments were legitimate and proper, and one counsel was authorized to make in the light of the fact that statements made by the deceased the day after the above statements were made were excluded by the court on the ground that deceased had not at that time given up all hope of recovery. Such comments went to the weight the jury would give to such statements, and was not a criticism of the court in admitting the statement in evidence, which he did admit. The theory of the defense was based on the testimony of Hamilton and appellant, and presented a wholly different state of facts, and it was proper and legitimate for counsel to argue that this evidence was entitled to greater weight and was more reasonable and consistent with all the evidence. And in rexily to this it was proper for the state’s counsel to insist that the statement was made under a sense of impending death, and therefore great weight should be given to it by the jury, and more than should be given to the testimony of Hamilton and appellant, who would naturally be interested in the verdict to be returned. But state’s counsel did not stop there. In the bill of exceptions presented by counsel for appellant to the court, it is alleged that the following language was used by counsel for the state in his closing address:

“The state endeavored to furnish you, gentlemen of the jury, with the dying declaration of the deceased, and if his dying statement made in yonder jail to Ben Nabours, the deputy sheriff, at a time when deceased was in a dying condition and his life blood was flowing in chambers where it was not accustomed to flow, after Dr. Best, his physician, had told him that he was standing in the portals of death and was soon to face Ms Maker and render an account in the courts of heaven of the acts of his life — a solemn statement made in writing by the hands of the deputy sheriff, who had him in custody and at a time when the animosities and prejudices of life had all vanished from his mind and his eyes were lifted upwards to that scene where truth alone is spoken, it is because you [referring to and pointing to defendant’s attorney] would not let it come. We offered to prove this solemn dying declaration of this man made under these circumstances, and it would be before you now, but for the objections of the defendant’s attorneys.”

The statement made by deceased to Mr. Nabours bad been excluded by the court, on the ground that it was not shown to be a dying declaration. The court refused to approve the above bill, and appellant undertook to prove it up as a bystander’s bill, and it is sworn to by Messrs. J. W. Garner, W. G. Gillis, and T. S. Henderson. All these gentlement were attorneys for appellant on the trial of the case, and we hardly think they are “bystanders” within the meaning of the statute. Of course, we appreciate that when bills are refused after court has adjourned, it is difficult to prove them up by others than the attorneys at so late a time, but if the stenographer’s act has brought about a new condition of affairs, rendering a change in the law governing these matters necessary, this should be presented to the Legislature. The courts cannot amend the statute. However, when the court refused the above bill, the court prepared one of his own, and filed it, and in it is shown:

“After the testimony had been closed, the jury charged, and the case was being argued to the jury, defendant’s counsel in course of his argument attacked the sufficiency and weight of the testimony of the witnesses Cook and Middleton as to the deceased’s alleged dying declaration, and argued to the jury that these witnesses were more or less interested, that Cook was a kinsman and was prejudiced against the defendant, and that the testimony of these two witnesses was fragmentary in character, and it necessarily did not show that the deceased had made the statements under a consciousness of impending death, and with the seriousness which should attend' such statement; that they were made in the course of conversation with his relatives and friends, and under circumstances which show that his mind was inflamed by passion against defendant, and that he was giving vent to his feelings rather than making a deliberate statement of the particulars, and that the state had not offered the testimony of the witness Dr. Kilpatrick to show that deceased was in such condition as to make his statement a dying declaration, and that under these circumstances the jury could not give to the declarations as testified to by these witnesses that high degree of credit to which dying declarations are entitled.
“Thereafter the district attorney, in his closing argument to the jury, called attention to the objection of defendant’s attorney to the dying declaration of deceased as testified to by Cook and Middleton, and in a burst of passion and eloquence said: ‘They tell you that these are not dying declarations, but at no time did the deceased alter or in any manner change the declarations and statements made by him to Cook and Middleton immediately after the shooting. He did not make any contrary statements to J. D. Hamilton, who brought him from Rockdale to Cameron on the train. He did not make any contrary statements to Ben Nabours at the jail. Eor if he had done so, it could have been proven by Ben Nabours at a time when deceased was practically dying and when the death gurgles were in his throat, and about an hour prior to his death; and if the deceased made any such contrary statement different from what he made to Cook and Middleton, then the reason it is not here is because you [pointing to defendant’s attorney] have objected to it.’
“While the district attorney was making this statement, counsel for the defendant was endeavoring to have him stopped, calling upon him to stop, and appealing to the judge, who for the moment was not upon the bench, but was standing near b,y, with his hand on the bench, and before he could resume the bench the above statement had been made in full to the jury. The judge having not understood the language, counsel for the defendant stated to him what the district attorney had said, and stated that he had objected to the remarks, and sought to stop them, because the statements therein made were not in evidence, and had been excluded from the consideration of the jury, and were highly prejudicial to the defendant, and calculated to inflame the minds of the jury against him, and asked the court to admonish and instruct the jury not to consider the statements, and to reprimand the district attorney for his gross violation of his privilege and require him to withdraw his said remarks, so that the jury might understand that the statements were improper, and that they could not consider them for any purpose, and that the district attorney was subject to reprimand for having made them. The judge merely remarked, T sustain your objection; I don’t wish any statements made outside of the records;’ but failed to further take notice of defendant’s request, or to further instruct and admonish the jury concerning said language, or to reprimand the district attorney, or to require him to withdraw his remarks.
“The defendant excepted to the remarks of the district attorney and to the refusal of the court to instruct the jury as requested by defendant, as hereinabove shown.”

This bill, prepared by the court, must, under the circumstances, he taken as correctly presenting the matter, and in it is shown that the district attorney said:

“He [deceased] did not make any contrary statement to Ben Nabours at the jail. Eor if he had done so, it could have been proven by Ben Nabours at a time when deceased was practically dying and when the death gurgles were in his throat, and about an hour prior to his death; and if the deceased made any such contrary statement different from what he made to Cook and Middleton, then the reason it is not here is because you [pointing to defendant’s attorney] have objected to it.”

This was improper argument, and should not have been made. If counsel for defendant thought the testimony of Ben Nabours inadmissible, it was his duty to object to it, and it seems the court took the same view of it as did counsel for appellant, and it was improper for counsel for the state to say that “deceased made no contrary statement to Ben Nabours.” What he said to Nabours was not in evidence, and it could not be gotten before the jury in this indirect way. This argument would give added strength to the testimony of Cook and Middleton, which had been attacked for various reasons, and coming at the close of the argument would be calculated to influence the jury. A jury at times cannot understand why certain testimony is excluded, and they resent at times the fact it is excluded, and if counsel is permitted to argue that, if they could have heard it, what it would have shown, they are likely to accept the statement of the prosecution as to what it would have shown, and give to such statement undue weight.

In this case the evidence discloses appellant had never met deceased, and knew no such man existed until summoned by Hamilton to go with him to make the arrest. The reason for the homicide, whatever it was, arose from incidents attendant upon the attempted arrest. His testimony, the testimony of Hamilton, and the testimony of Will Cook (outside of the dying declaration) would tend strongly to show that appellant, if guilty of any offense, was guilty of no higher grade of offense than manslaughter. And yet, with this closing speech of counsel ringing in their ears, the jury returns a verdict finding appellant guilty of murder, assessing a very heavy penalty. We cannot say this improper argument did not contribute to such a verdict being rendered.

The judgment is reversed, and the cause remanded.

PRENDERGAST, P. J.

(dissenting). The reversal of this case on the ground stated in the opinion, in my judgment, violates all of the principles heretofore established by this court on the subject, and is contrary to practically all cases heretofore decided on that point. Mooney v. State, 176 S. W. 56, and cases therein cited; Martoni v. State, 167 S. W. 350, and cases therein cited.

Both the bill and the statement of facts with absolute certainty show (I quote from the bill, which is the same as the statement of facts):

“ * * * The state proved by the witness Ben Nabours as follows:

“I was the deputy sheriff in charge of the jail when the deceased, Marvin Williams, was brought over from Rockdale. When he was brought to the jail, I sent for Dr. E. E. Best, the county physician. When he came, he examined deceased and said to him, ‘You are a mighty sick man, and the chances are you will never be any better.’ I then asked him if there was any word he wanted to send anybody. He said he wanted to let his uncle know about it. He then told me that he wanted me to write down his statement about how he was shot. I told him I would and I wrote it down in a little pocket memorandum book and he signed it. I have the book here [producing a small memorandum book from his pocket],
“Here the defendant’s attorney objected to the testimony of the witness and to the introduction of any statement because no sufficient predicate had been laid for its introduction as a dying declaration; and the court remarked, ‘Is Dr. Best in the courtroom?’ The District Attorney said, Ties, sir.’ The court then said. T would like to hear him before I rule.' Thereupon Dr. E. E. Best testified: I was called to see the young man Marvin Williams at the county jail. I found him greatly prostrated and in a dying condition. He was not able to talk much. I asked him how it occurred and told him his condition — that he was a very sick man. He said, T know it. I may not get better.’ I said, ‘You may not get well, and if you do not get well or get better, what do you wish me to do?’ He replied, ‘Notify my uncle in Rock-dale.’ He remarked from time to time, ‘You have got to do something for me.’ I told him, ‘We may take you to a sanitarium.’ He said, ‘Take me anywhere.’ His attitude seemed to be that he wanted something done for himself immediately. He was in intense pain and wanted relief. He said, ‘I know I am bad hurt, but X want you to do something for me.’ At another time he said, ‘If you don’t take me to the sanitarium, I am going to die’ or T won’t get over this.’ The impression made on me by his remarks was that he was in distress and wanted me to do something to give him relief. He expressed no belief that he was going to get better or that he was going to die. But his remarks impressed me that he was in distress and wanted something done and felt that something must be done right away and probably felt that he wanted me to relieve him from physical suffering because he was in distress.
“Here the jury was retired by direction of the court, and the witness Dr. Best was further examined in the absence of the jury, and, after the court had further examined him, the court sustained defendant’s objection to the testimony of the witnesses Nabours and Best, and excluded the same from the jury and excluded the statement referred to in the testimony of the witness Ben Nabours as a dying declaration.”

When Dr. Best testified on the point, appellant again, in the presence and hearing of the jury, objected, because the predicate was not sufficient to offer the said written statement as a dying declaration. It was at that point and after the testimony of both of these witnesses and the objections had been made in the presence and hearing of the jury that the court retired the jury. He then heard Dr. Best further testify on the point, but neither the bill nor the statement of facts gives what further testimony Dr. Best gave before the court out of the hearing of the jury. The court after hearing this further testimony by Dr. Best, then sustained appellant’s objections and excluded said testimony.

There can be no doubt but that the prosecuting attorney could properly argue as he did, with possibly the sole exception of this statement: “Then the reason it is not here is because you [pointing to defendant’s attorneys] have objected to it”- — simply that and nothing more. Appellant’s attorneys at the time objected to that argument of the prosecuting attorney, and the court promptly sustained their objection. They did not, on the trial, attach enough importance to the matter to even ask a written charge from the court to the jury to disregard said argument. As stated, it all occurred in the presence and the hearing of the jury, and they had absolute knowledge at the time said prosecuting attorney made said argument that appellant’s attorneys had objected to said proposed testimony, and that it was excluded by' the court on their objection.

Under the circumstances, I think it not only improbable, but practically impossible, for the prosecuting attorney’s argument to have in the slightest degree influenced the jury either to find the appellant guilty of murder or to enhance his punishment therefor. I think it utterly unreasonable that the jury, because of said argument, under the circumstances, ignored their oaths to decide the case on the evidence, and to have decided it, or been in any way influenced in deciding it, because of said argument. To my mind, it is utterly unreasonable to think or imagine that the jury, disinterested and wholly unbiased, should ignore all of the evidence in the case, all of the argument of the able attorneys on both sides on the merits of the case, violate their oaths and decide the case, or be influenced in any way in deciding it, because of said one slight short statement of which they each had absolute knowledge, without reference to what the attorney said.

The court submitted both manslaughter and aggravated assault. The jury, under their oaths, after hearing all the evidence, charge of the court and argument of counsel, refused to find him guilty of either manslaughter or aggravated assault, but instead found him guilty of murder, as the evidence amply warranted, if it did. not require, them to so find. The deceased was shot in the back and killed by the appellant, while he was running and 40 or SO yards away from him. To my mind, the fact, if it be a fact, that appellant had had no previous acquaintance with the deceased instead of being in his favor is against him. He had no reason or cause whatever to shoot the deceased in the back, while he was running from him, and kill him. The penalty, in my opinion, is not a heavy penalty, considering all the facts of this case. Human life in this state seems to be the only cheap thing in it. Here the appellant, without cause or justification, shoots down the deceased, a young man just past 22 years of age, who in all human expectancies would have lived at least his three score years and ten, if not longer, and he and his family and the state is deprived of his life of perhaps 50 years by the appellant; and he should consider himself fortunate, indeed, if he escapes with punishment of confinement, not deprivation of his life, for even 15 years. I think 15 years, or not less than 5 nor more than 15, as his sentence is under the law now, is not a heavy penalty, but a very moderate one.

In my opinion, this judgment should not be reversed, but it should be affirmed.

On Motion for Rehearing.

PRENDERGAST, P. J.

We have again reviewed this case and have reached the conclusion that the dissenting opinion heretofore filed correctly decides the question on which the original opinion reversed the case. In view of both opinions, we think it unnecessary to further discuss the question. The dissenting opinion will now be made the opinion of the court.

It is therefore ordered that the rehearing herein be granted, the judgment reversing and remanding the case set aside, and the order now entered will be that the case be in all things affirmed.

HARPER, J.

I wish to enter this my dissent to the judgment granting the motion for rehearing and affirming the judgment. I think the case should be reversed, and adhere to the original opinion.

On Motion for Further Rehearing.

PRENDERGAST, P. J.

In his dissenting opinion Judge HARPER has collated a large number of cases wherein the argument of prosecuting attorneys have been condemned by this court, and some cases reversed because thereof. In a great number of them reversals were not had alone because of such condemned arguments, but they were reversed on other grounds, and what was said of the arguments was more in view of another trial and as a caution to prosecuting attorneys than otherwise.

He has also copied some portions of the opinions of the judges in some of them, and ingeniously contends they apply to the question in this case. But we think what is quoted as said by the judges, when taken in connection with the facts and argument they were discussing in those cases, are inapplicable to this case. It would be a useless waste of time to point out the various distinctions and inapplicability of these cases.

It is unfortunately true the judges in writing opinions have not always had and kept in mind the proper rules applicable in the discussion and condemnation as reversible, of arguments of prosecuting attorneys. Because of this, some arguments have been condemned as reversible in connection with other reversible errors (and sometimes perhaps without any other reversible error), which should not, and otherwise would not, have been.

On the other hand, an equally large number of cases as Judge HARPER has collated, could be collated, wherein this court has held arguments of prosecuting attorneys objected to, were not cause for reversal, and some of them, apparently at least, much more hurtful to the accused than the argument in this cause could have been. But we see no necessity at this time of collating them.

The rules on this subject are clearly and distinctly laid down in such cases as Bass v. State, 16 Tex. App. 69; Pierson v. State, 18 Tex. App. 524; House v. State, 19 Tex. App. 227; Tweedle v. State, 29 Tex. App. 586, 16 S. W. 544; Young v. State, 19 Tex. App. 542; Kennedy v. State, 19 Tex. App. 634; Hatchell v. State, 47 Tex. Cr. R. 385, 84 S. W. 234; Felder v. State, 59 Tex. Cr. R. 145, 127 S. W. 1055; and an innumerable number of other cases following these, and to the same effect, and down to this very date.

We correctly stated how all this matter occurred before the jury in the opinion of Judge PRENDERGAST when first written by him as a dissenting opinion. It is unnecessary to again state it, or further discuss the question.

The motion for rehearing is overruled.

HARPER, J.

(dissenting). On the original hearing this case was reversed and remanded, Presiding Judge PRENDERGAST dissenting. On state’s motion for rehearing, the original opinion was overruled and the case affirmed, this writer entering his dissent. Appellant has now filed a motion for rehearing, and I wish to state more fully why I cannot agree to an affirmance of the case, and my reasons for thinking such error was committed as should result in a reversal of the case.

In the original opinion, I held that the court committed no error in admitting the testimony of Cook and Middleton as to what they claimed were the dying declarations of deceased. While my Brethren express no opinion on this question, I suppose they agree with me, as they affirm the case. However, appellant earnestly insists we were in error in so holding, and says there is no testimony showing that deceased was sane at the time he made such declarations, and contends that the testimony would rather suggest that deceased was unbalanced and deranged mentally. In this view I cannot concur. It is true the record discloses deceased, a few days before the homicide, had behaved very unseemly, had cursed and abused his wife, and threatened at one time to kill and bum his wife, but his wife attributed this to meanness and drinking. While the question was not asked the witness, “Was deceased sane at the time you were talking with him?” yet they detail a conversation and acts and conduct of deceased, from which no reference could be drawn but that he was sane and rational at the time he made the declarations testified to. As said by Mr. Branch, in his work on Criminal Law in section 485:

“It is enough, if it satisfactorily appear in any mode that they were made under proper sanction, whether it be directly proved by express language of the declarant or be inferred from his conduct and other circumstances in the case, all of which are resorted to in order to ascertain the state of declarant’s mind” — citing Morgan v. State, 54 Tex. Cr. R. 549, 113 S. W. 934, and a number of other cases.

While, as contended by appellant, it is true the state did not call the attending physician, Dr. Kilpatrick, but relied on the testimony of a kinsman of deceased, Will Cook, and a neighbor, George Middleton, not only to pro.ve the dying declarations, but also the facts that would render the statement admissible, and while we held, and are still of the opinion, that the testimony of these two men was sufficient to render tlie declarations admissible, yet súcb. facts, in our opinion, but emphasize tbe error in permitting the district attorney to strengthen and lend additional weight to the testimony of these two men by stating in his closing argument what the deputy sheriff would haye testified to had not appellant interposed an objection to his testimony. As stated, in other words, the objection of appellant to the testimony of Cook and Middleton as to the alleged dying declaration went to the weight to be given this testimony, and did not render it inadmissible. Appellant’s counsel in their argument to the jury took this view and were contending that but little weight should be given to this testimony by the jury, or, as stated by the court in the bill prepared by him:

“Defendant’s counsel in course of his argument attacked the sufficiency and weight of the testimony of the witnesses Cook and Middleton as to the deceased’s alleged dying declaration, and argued to the jury that these witnesses were more or less interested, that Cook was a kinsman and was prejudiced against the defendant, and that the testimony of these two witnesses was fragmentary in character, and it necessarily did not show that the deceased had made the statements under a consciousness of impending death, and with the seriousness which should attend such statement; that they were made in the course of conversation with his relatives and friends and under circumstances-which show that his mind was inflamed by passion against defendant, and that he was giving vent to his feelings rather than making a deliberate statement of the particulars, and that the state had not offered the testimony of the witness. Dr. Kilpatrick to show that deceased was in such condition as to make his statement a dying declaration, and that under these circumstances the jury could not give to the declarations as testified to by these witnesses that high degree of credit to which dying declarations are entitled.”

When appellant’s counsel had made this argument, the force of it not only apparently impressed the jury, but impressed counsel for tbe state, and state’s counsel became fearful that the jury would give but little weight to this testimony admitted under the predicate they had laid and circumstances in the case, and to strengthen this testimony and cause the jury to give it added weight, they go outside the record and state what they could have proven by a deputy sheriff as to what deceased said on another and different occasion, if appellant had not objected. Or, to put it in the language of the trial court:

“Thereafter the district attorney, in his closing argument to the jury, called attention to the objection of defendant’s attorney to the dying declaration of deceased as testified to by Cook and Middleton: and in a burst of passion and eloquence, said: ‘They tell you that these are not dying declarations, but at no time did the deceased alter or in any manner change the declarations and statements made by him to Cook and Middleton immediately after the shooting. He did not make any contrary statements to J. D. Hamilton, who brought him from Rock-dale to Cameron on the train. He did not make any contrary statements to Ben Nabours at the jail. For, if he had done so, it could have been proven 6y Ben Nabours at a time when deceased was practically dying and when tlte death gurgles were in Ms throat, and about an hour prior to his death; and if the deceased made any such contrary statements different from what he ma,de to Cook and Middleton, then the reason it is not here is because you [pointing to defendant’s attorney] have objected to it.’ ” (Italics ours.)

In what more emphatic language could the district attorney have told the jurors that, if counsel for appellant had not objected to Ben Nabours testifying, he would have proven by him the same testimony as he had proven by Cook and Middleton? State’s counsel had called Ben Nabours to the witness stand and tried to make this proof. The court had sustained appellant’s objection and would not permit Nabours to testify, for the reason that Dr. Best, who was attending deceased at that time, made it apparent that deceased did not then appreciate that he was in a dying condition and had no hope of recovery. This was 24 hours after the statement Cook and Middleton claim had been made to them. State’s counsel must have appreciated the fact that the jury under such circumstances would give but little weight to the dying declarations testified to by Cook and Middleton, and without that statement there would be no evidence to justify a conviction for murder, but the testimony and all the testimony outside of that declaration would only justify a conviction for manslaughter, if in fact the jury would not find appellant justified under his plea of self-defense.

The writer has searched the authorities, and in his opinion has found no case that would justify a holding that such improper conduct, statement, and argument of the district attorney would not present reversible error, where the person on trial is found guilty of the higher grade of offense and more than the minimum punishment assessed.

As said by Judge Hurt, in Parks v. State, 35 Tex. Cr. R. 382, 33 S. W. 874:

“It is always within the province of counsel, for either the state or the defendant, to fully cover all the field authorized by the testimony elicited on the trial, and to draw therefrom all legitimate deductions, and to explain the same with argument and illustration; and we would not be understood as in any wise placing' a limit to legitimate and proper argument to be indulged in by counsel, either for the state or the defendant. There are barriers, however, that cannot be passed; and when it is made to appear to us that remarks have been used outside the evidence in the case, especially of a denun-ciatory character, such as are calculated to inflame the minds of the jury against the defendant, and more especially when it is shown that these remarks were used in the closing argument, with no opportunity to reply on the part of the defendant, só abused, it is the duty of this court to interfere.”

See, also, Thompson v. State, 33 Tex. Cr. R. 475, 26 S. W. 987; Conn v. State, 11 Tex. App. 400.

In Robbins v. State, 47 Tex. Cr. R. 318, 83 S. W. 693, 122 Am. St. Rep. 694, Judge Henderson said:

“Bearing in. mind that there was no evidence whatever of this, and that none could have been introduced (as in this case), it simply demonstrated how the district attorney * * * attempted to evade the law. * * * It occurs to us that such conduct, even though the court instructed the jury to disregard such argument, would he cause for reversal. So much of this character of argument was calculated to thoroughly poison the minds of the jurors against appellant as a man of the most base and vicious character, and not only tend to his conviction, but also to increase his punishment. Under the circumstances it was impossible for the court to withdraw the dagger and heal the wound inflicted at the same time. Rutherford v. State, 67 S. W. 100.”

In Greene v. State, 17 Tex. App. 407, Judge Willson said:

“It was improper for counsel for the prosecution in the concluding argument to state that if the defendant’s stepdaughter had been examined as a witness * * * she would have testified to certain facts. Such statement was not warranted by the evidence; was not legitimate argument; and was not justified by anything said by counsel for defendant in addressing the jury.”

See, also, Laubach v. State, 12 Tex. App. 591.

In Nalley v. State, 28 Tex. App. 392, 13 S. W. 672, Judge White said:

“Even if the prosecuting officer could have proved what he stated, such testimony would have been clearly inadmissible against defendant, unless he had been directly connected with the matter. Favors v. State, 20 Tex. App. 158; Marshall v. State, 5 Tex. App. 273. There being no proof that these overtures to the witness were made by the authority or with the knowledge of the accused, such statement by the district attorney was illegal and unjust, and was highly calculated to prejudice the accused. Barbee v. State, 23 Tex. App. 199 [4 S. W. 584]. Anything Sam Nalley, the brother, might have done in the matter, in the absence and without the knowledge of defendant, was most clearly inadmissible against and could not be binding upon him (Maines v. State, 23 Tex. App. 568 [5 S. W. 123]), and afforded no reasonable presumption or inference pertinent to the issue in the case for which defendant was on trial, and the court should have so instructed the jury (Taylor v. State, 27 Tex. App. 464 [11 S. W. 462]). ‘No improper means should be resorted to to prejudice the minds of the jury against defendant in the remotest degree. No testimony should be offered on the part of the prosecution that is not relevant and legal. No remarks should be made by counsel for the state which are not fully warranted by the evidence.’ Gazley v. State, 17 Tex. App. 267. That the course of the district attorney in this matter was calculated to prejudice the rights of defendant is, we think, manifest. How far he has been prejudiced, in the absence of any attempt upon the part of the court to obviate and avert the prejudice, it is impossible to tell. The law demands a fair, impartial, and legal trial. For this apparent wrong done the defendant in the trial below, the judgment is reversed and cause remanded.”

In Exon v. State, 33 Tex. Cr. R. 469, 26 S. W. 1090, Judge Simkins sharply criticizes district attorneys for stating what could have been proven by a witness had the court not excluded the testimony. He says:

“Now * * * the evidence was excluded by the court, but the district attorney informed the jury .that the entire grand jury would swear to the fact that Mrs. Exon stated she saw her husband and daughter in a compromising position. * * * There can be no question as -to the importance of this testimony. * * * The statement of Mrs. Exon before the grand jury would therefore be naturally taken by the jury, * * * to be strong corroboration of her daughter’s testimony;” and the case was reversed.

In Clark v. State, 23 Tex. App. 263, 5 S. W. 116, Judge Willson said;

“Counsel for the state, in the closing argument, alluded to certain testimony offered by the state, and which had been rejected by the court, and stated that he could have proven certain facts by said testimony bad not the defendant interposed objections. This was not legitimate argument, was injurious error, and should have been promptly and emphatically condemned by the court, and its injurious tendency, so far as possible, removed from the minds of the jury.”

And in commenting on improper testimony being injected into the case in the district attorney’s closing argument, Judge Willson said in Tillery v. State, 24 Tex. App. 274, 5 S. W. 846, 5 Am. St. Rep. 882:

“These matters were wholly foreign to the case on trial, without any support * * .* in the evidence, and were calculated to operate upon the minds of the jury prejudicially to the defendant. These improper remarks, if there was no other error apparent in this record, would justify, if not demand, a reversal of the judgment.”

Judge White so announces in Fuller v. State, 30 Tex. App. 565, 17 S. W. 1108; Judge Simkins in Weatherford v. State, 31 Tex. Cr. R. 536, 21 S. W. 251, 37 Am. St. Rep. 828; Judge Henderson in Beardon v. State, 46 Tex. Cr. R. 148, 79 S. W. 37; and when Judge Ramsey succeeded that learned justice, he, in the case of Davis v. State, 54 Tex. Cr. R. 249, 114 S. W. 373, reviewed the authorities in this state and laid down the rule when improper argument will be cause for reversal. After discussing the authorities he says:

“And it has been held that, where the remarks of the prosecuting attorney in argument were excepted to, but no charge in regard to them was asked, no error is presented. This language has been so frequently used by this court that it is not singular that the learned trial judge seemed to attach much importance to the fact that no charge was asked by counsel for appellant instructing the jury to disregard the improper argument objected to. We think, however, the true rule in respect to this matter may be thus stated, that unless the remarks of counsel for the state are obviously of a character to impair the rights of the defendant or prejudice bis case before the jury, such remarks, though improper, will not be considered for reversal, unless a charge was asked and refused and exception reserved (Lancaster v. State, 36 Tex. Cr. R. 16 [35 S. W. 165]), and that it follows as a necessary corollary from this doctrine that where the improper argument is of such a grave character as to render it obviously injurious and hurtful, and the matter is properly preserved by bill of exceptions, that the fact that no special charge was asked instructing the jury to disregard same will not of itself deprive the appellant in a proper case of reversal of a judgment of conviction.”

And lie applies it to a case wherein were discussed statements of extraneous facts, as in this case.

In Taylor v. State, 50 Tex. Cr. R. 562, 100 S. W. 394, Judge Brooks said:

“It is true no special charges were asked, but, nevertheless, in the light of this record this argument is so highly prejudicial as to exclude every other reasonable hypothesis then that it was prejudicial to the rights of appellant. It follows, therefore, that the court erred in not granting a new trial to appellant, on account of the argument and statements of the county attorney.”

Powell v. State, 70 S. W. 219, is another case wherein Judge Brooks reversed the case solely because of improper remarks, and they were deemed so hurtful in that case that the case was reversed, even though the court instructed the jury not to consider the remarks.

Mr. Branch, in his work on Criminal Law (section 02), lays down the rule:

“Error for state’s counsel to get before the jury in argument a fact which he would not be entitled to prove and the effect of which is damaging to defendant” — citing Jenkins v. State, 49 Tex. Cr. R. 461. 93 S. W. 726, 122 Am. St. Rep. 812; Rodriguez v. State, 58 Tex. Cr. R. 275, 125 S. W. 404; McKinley v. State, 52 Tex. Cr. R. 184, 106 S. W. 342; Askew v. State, 54 Tex. Cr. R. 416, 113 S. W. 287; Baughman v. State, 49 Tex. Cr. R. 34, 90 S. W. 166: Coloman v. State, 49 Tex. Cr. R. 86, S. W. 499; Cline v. State, 71 S. W. 23; Turner v. State, 39 Tex. Cr. R. 329, 45 S. W. 1020: Battles v. State, 53 Tex. Cr. R. 207, 109 S. W. 195; Bice v. State, 37 Tex. Cr. R. 43, 38 S. W. 803: Pollard v. State, 33 Tex. Cr. R. 203, 26 S. W. 70.

Many other cases could be cited written by the learned judges who have preceded the writer on the bench, and, since he has been honored with this position, he has endeavored to follow the rules of law as established by them in this, as in other instances.

In the recent case of Bullington v. State, 180 S. W. 679, the writer had occasion to express his views in a case wherein counsel for the state in argument had injected into the case evidence that was not in the record, and we held it presented reversible error, even though no special charge was presented in regard thereto. In that case we said:

“The rule is that if the remarks are of such character that instructions not to consider same would not remove from the minds of the jury the prejudicial and harmful effect of the argument, it will present error, even though no written charge was requested.”

And such rule apparently received the approval of all members of the court, and such is the rule, I think, the court has been following since he has been a member of the court. See Harwell v. State, 61 Tex. Cr. R. 233, 134 S. W. 701; Clements v. State, 61 Tex. Cr. R. 161, 134 S. W. 728; Coffman v. State, 62 Tex. Cr. R. 95, 136 S. W. 779; Paris v. State, 62 Tex. Cr. R. 355, 137 S. W. 698; Burrell v. State, 62 Tex. Cr. R. 635, 138 S. W. 707; Johnson v. State, 63 Tex. Cr. R. 50, 138 S. W. 1021; Davis v. State, 64 Tex. Cr. R. 13, 141 S. W. 264; Grimes v. State, 64 Tex. Cr. R. 64, 141 S. W. 261; McMillan v. State, 65 Tex. Cr. R. 319, 143 S. W. 1174; Rushing v. State, 62 Tex. Cr. R. 309, 137 S. W. 373; Williams v. State, 148 S. W. 306; Beaver v. State, 63 Tex. Cr. R. 581, 142 S. W. 12; Thompson v. State, 150 S. W. 182; Liner v. State, 70 Tex. Cr. R. 75, 156 S. W. 212; Brailaford v. State, 71 Tex. Cr. R. 113, 158 S. W. 542; Daniels v. State, 71 Tex. Cr. R. 662, 160 S. W. 708; Harwell v. State, 71 Tex. Cr. R. 473, 160 S. W. 379; Dunn v. State, 72 Tex. Cr. R. 170, 161 S. W. 468; Bradley v. State, 72 Tex. Cr. R. 287, 162 S. W. 516; Cooper v. State, 72 Tex. Cr. R. 645, 163 S. W. 425; Stanfield v. State, 73 Tex. Cr. R. 290, 165 S. W. 218; Hemphill v. State, 72 Tex. Cr. R. 638, 165 S. W. 465, 51 L. R. A. (N. S.) 914; Eads v. State, 170 S. W. 147; Marshall v. State, 175 S. W. 154. Many other cases could be cited rendered since I. have had the honor of being a member of the court, but in the opinion in the case of Johnson v. State, 148 S. W. 330, Judge Davidson, in a ease similar to this, so aptly expresses the law, I quote from it:

“Another bill recites that the county attorney, in his argument, made the following statement to the jury: ‘He shot an unarmed man; shot him in the back, because he went there to collect a bill. “He ordered me out, and before I got out he shot me.” ’ To these remarks objections were urged by the defendant. The testimony with regard to this in the dying declaration was excluded by the court. Indirectly, if not directly, through the witness Smith, the matter was placed before the jury in regard to his being the bill collector, and seeking to collect from the defendant. This statement or argument, if deemed an argument, by the prosecuting officer was unwarranted and on a crucial point in the case which had been excluded by the court in part at least, and directly so, so far as the dying declaration was concerned, and it was used illegitimately by the county attorney as an argument; and it was upon a most crucial point in the case, and was therefore not permissible. If the prosecuting officers will continue to violate the rules of argument and make statements of fact before a jury which are not permissible, or which have been excluded by the court, then they force upon this court the duty of reversing cases. They understand, or ought to understand, that when they transgress the rules far enough in the line of unwarranted argument to use matters before a jury to press a conviction, when such things are unwarranted by law and have been excluded by the court, they assume the responsibility of forcing this court to reverse judgments. The accused in Texas is entitled to a fair trial on legitimate testimony.”

In this case, as in that case, the district attorney had tried to get the testimony admitted. The court had excluded it; yet in his closing argument he states, in effect, what the witness would have testified. It was oñ the crucial point in the case, and without this testimony of the district attorney the jury, in my opinion, would have found appellant guilty of no higher grade of offense than manslaughter, if guilty of any offense; yet with this testimony of the district attorney (not argument) before them, the jury finds the appellant guilty of murder, and assesses a penalty almost equivalent to life imprisonment. Had the court admitted this testimony in evidence over the objection of appellant, with no proper predicate laid, this court would not hesitate to reverse the case. When the district attorney tried to lay the proper predicate, he could not do so, and the court would not permit the witness to testify ; yet in his closing argument the district attorney gets the testimony before the jury by himself telling the jury what the witness would have sworn. If the law can be evaded in this way, it would be better that they make no objection to testimony, for then they would know what they had to meet, and they could discuss it in their argument. When it comes as this testimony did on the crucial issue in the closing address of the district attorney, an accused is helpless and at the mercy of the court.

I am of the opinion that the case should be reversed, and counsel made aware that additional facts and extraneous matters cannot be gotten before the jury by their un-sworn statements made in the closing argument
      <©^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    McPHERSON v. STATE.
    (No. 3918.)
    (Court of Criminal Appeals of Texas.
    Jan. 19, 1916.
    On Motion for Rehearing, Feb. 16, 1916.)
    1. Burglary <§==>36 — Prosecution — Evidence.
    In a prosecution for burglary of a saloon, where defendant, its former employs, was shown to have opened the saloon in the morning and closed it at night while working there, evidence that he had been in possession of a key, though he no longer worked there, was admissible.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. § 90; Dec. Dig. <§=>36.]
    2. Criminal Daw <§=372 — Evidence—Other Oefenses.
    In a prosecution for burglary of a saloon, evidence that a drug store in the same building was burglarized on the same night, the two transactions being so interwoven as to be but one in effect, was admissible.
    [Ed. Note. — Por other cases, see Criminal Daw, Cent. Dig. §.§ 833, 834; Dec. Dig. <§=>
    3. Burglary <§=>41 — Conviction—Sufficiency of Evidence.
    In a prosecution for burglary, evidence held sufficient to support conviction.
    [Ed. Note. — Por other cases, see Burglary, Cent. Dig. §§ 94-103, 109; Dec. Dig. <§=>41.]
    4. Criminal Daw <§=>368 — Evidence — Res Gestas.
    In a prosecution for 'burglary, testimony of defendant as to what another, also charged with the crime, with whom defendant denied acting in concert, had told defendant while the other was in the very commission of the act, as to how such other had gained entrance, was competent, though such other was not competent as a witness, since declarations made by a person who is incompetent to testify as a witness are admissible if part of the res gestae.
    [Ed. Note. — Por other cases, see Criminal Daw, Cent. Dig. §§ 806, 812, 814, 815, 821; Dec. Dig. <§=>368.]
    5. Criminal Daw <§=>359 — Evidence.
    In a prosecution for burglary of a saloon, the judgment showing that two persons, other than defendant, also charged with the crime, had pleaded guilty to burglarizing the saloon on the particular occasion, was admissible.
    [Ed. Note. — Por other cases, see Criminal Daw, Cent. Dig. §§ 789, 790; Dec. Dig. <§=> 359.]
    6. Criminal Daw <§=>359 — Evidence—Commission of Crime by Another.
    In a prosecution for burglary of a saloon, any testimony tending to show that parties other than defendant broke and entered the saloon was admissible.
    [Ed. Note. — Por other cases, see Criminal Daw, Cent. Dig. §§ 789, 790; Dec. Dig. <§=> 359.]
    7. Burglary <§=>16 — Principals and Accessories — ‘Principal. ’ ’
    One who stood out in front of a saloon, keeping watch, while others broke and entered it, was guilty of burglary as a “principal.”
    [Ed. Note. — Por other cases, see Burglary, Cent. Dig. § 3; Dec. Dig. <§=>16.
    Por other definitions, see Words and Phrases, First and Second Series, Principal.]
    8. Burglary <§=>16 — Principals and Accessories — Principal.
    The mere presence of defendant where and when a saloon was being broken and entered did not constitute him a principal in the crime of burglary, unless he aided by his acts, or encouraged by his gestures, those engaged in the offense.
    [Ed. Note. — Por other cases, see Burglary, Cent. Dig. § 3; Dee. Dig. <§=>16.]
    9. Criminal Daw <§=>792 — Tbiai>-Instruc-tions — Principals and Accessories.
    In a prosecution for burglary of a saloon, where defendant testified that he was called into the place to have a drink by parties engaged in committing the crime, and that he left as soon as he understood the true condition of affairs, defendant had the right to have presented to the jury the law., applicable to his defense, that he was not guilty as a principal, unless he aided in the commission of the crime.
    [Ed. Note. — Por other cases, see Criminal Daw, Cent. Dig. §§ 1818-1820; Dec. Dig. <§=> 792.]
    10. Criminal Daw <§=>841 — Triai>-Instruc-tions to Jury — Objection.
    Objection to the charge must be made before it is read to the jury.
    [Ed. Note. — Por other cases, see Criminal Daw, Cent. Dig. § 2022; Dec. Dig. <§=>841.]
    11. Criminal Daw <§=>656 — Trial—Remark of Court.
    In a prosecution for burglary of a saloon, where a detective testified that the morning after the burglary they searched defendant’s house and found none of the stolen property, the court’s remark that all the testimony of the witness could have been eliminated by objection by the state, because immaterial, was improper, as calculated to cause the jury to give but little weight to the testimony.
    [Ed. Note. — Por other cases, see Criminal Daw, Cent. Dig. §§ 1524-1533; Dee. Dig. <§=> 656.]
    12. Criminal Daw <§=>349 — Evidence — Fruitless Search.
    In a prosecution for burglary of a saloon, a detective’s testimony that he searched defendant’s house and found none of the missing property, defendant claiming that others, who had previously pleaded guilty to the burglary, and in whose possession stolen property had been found, were alone guilty, was admissible.
    [Ed. Note. — Por other cases, see Criminal Daw, Cent. Dig. §§ 778-785; Dec. Dig. <§=> 349.]
    13. Criminal Daw <§=>349 — Evidence.
    In a prosecution for burglary of a saloon, where defendant had admittedly been at the scene of the crime' when it was committed, but, as he claimed, with an innocent purpose, testimony that from the appearance of his clothing shortly after he had none of the stolen property on his person, was admissible.'
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 778-785; Dec. Dig. @=>349.]
    14. Burglary <@=>16 — Principal—Necessity for Concert.
    Defendant, present when a saloon was burglarized, entering from the front at the criminals’ invitation, while they entered from the rear, was not guilty as a principal, unless acting in concert with them.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. § 3; Dec. Dig. <@=>16.]
    On Motion for Rehearing.
    15. Criminal Law <@=>1119 — Appeal and Error — Presentation op Grounds op Review.
    In a prosecution for burglary, a bill of exception showing that when the state started to cross-examine a witness the court remarked, “all_ this cross-examination could have been eliminated upon objection by the state, because the testimony is immaterial,” and showing defendant’s exception to the remark, was sufficient to present for review the error that the court’s remark would naturally cause the jury to give little weight to the testimony, which was material and important under other evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2927-2930; Dec. Dig. <©=> 1119.]
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    John McPherson was convicted of burglary, and he appeals.
    Reversed, and cause remanded.
    Charles Murphy, of Houston, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

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

The state proved that appellant had been bartender for W. H. Connors, who owned a saloon in Houston. That the saloon was sold to A. Rainey, when appellant lost his position; the saloon was burglarized that night. Xll the evidence about the keys was admissible, as the evidence showed that appellant opened the saloon in the morning and closed it at night while working there, and therefore the state’s contention was that he was in possession of a key to the burglarized house, notwithstanding he no longer worked there, and these bills present no error. Neither does the bill that complains that the court permitted evidence to be introduced that the drug store of Ralph Hurloek was burglarized the same night. The saloon which appellant was charged with burglarizing and the drug store were in the same building, and, in placing appellant, his son and Hainey at this point on the night of the burglary, Hurlock fixed the time that he saw them at the time his store was burglarized, it being the same night the saloon was burglarized. The transactions were so interwoven as to be part and parcel of the same transaction.

However, as we view the record, there are several errors pointed out in the bills. The bills themselves are very vague, indefinite, and incomplete, but we think that bill No. 6 is sufficiently full and complete to present the matter complained of, and as it presents error, we will review all the questions wherein we think the court erred, regardless of whether or not the bills are full enough in and of themselves to manifest the error, so that they will not occur on another trial.

As stated, the state placed appellant, his son, and Hainey at the drug store at the time the drug store closed. Then by Mr. and Mrs. Fetters it proved that appellant, his son, and Hainey walked down in front of the saloon, and in a few moments turned and went into the saloon. The state also proved the saloon was burglarized. This evidence would support a conviction.

Appellant took the stand and admitted he was at the drug store, and said he walked down in front of the saloon, and was waiting for a car to go home. While standing there he was called by Frank Barefield, who was inside of the saloon, and asked if he did not want a drink; that he, his son, and Hainey turned and went in the saloon through an open door, and when he got in there he could see what was taking place; he then refused to drink, and he and his son at once left; that as he left Ford was passing along with his arms full of bottles of whisky, and asked him if he wanted a portion of it, and he told him no. It is seen his defense was that Bare-field and Ford burglarized the saloon, and while he went into the saloon, his acts were not such as to constitute him a party to the crime, either as principal, accomplice, or accessory. While testifying, as shown by one bill, he desired to testify to what Barefield told him on that occasion how he said he (Barefield) got into the house. The court excluded this testimony on the ground that Barefield would not be a competent witness, as he was also charged with the offense. There is no doubt that Barefield would not •be a competent witness, but what appellant wished to testify to was res gestse of the crime. Barefield made the remarks while engaged in the very act, and it has always been held that declarations made by a person who is incompetent to testify as a witness are admissible if res gestse of the transaction. Neely v. State, 56 S. W. 626; Croomes v. State, 40 Tex. Cr. R. 675, 51 S. W. 924, 53 S. W. 882; Kenney v. State, 79 S. W. 817, 65 L. R. A. 316; Hunter v. State, 54 Tex. Cr. R. 226, 114 S. W. 124, 130 Am. St. Rep. 887; Thomas v. State, 47 Tex. Cr. R. 534, 84 S. W. 823, 122 Am. St. Rep. 712. Appellant was testifying (and that was his defense) that Barefield and Ford alone committed the burglary, and anything that was said or done tending either to prove or disprove that fact would be admissible if res gestse of the transaction. It is the event speaking, not the person testifying. Mr. and Mrs. Fetters did not see Ford or Barefield — they only saw appellant, Ms son, and Hainey enter the saloon.

Appellant desired to introduce the judgment showing that Barefield and Ford had pleaded guilty to burglarizing this saloon on this occasion. This judgment should have been admitted.

It is evident from the state’s testimony that all five men did not enter from the front door, and did not go in together. Any testimony which would tend to show that Ford and Barefield alone were the parties who broke and entered the saloon should have been admitted, as this was a part of appellant’s defense. Beginning with Du Bose v. State, 10 Tex. App. 251, we have an unbroken line of decisions holding that when the issue is whether or not the person on trial committed a crime, he has the right to show that some other person committed it, and any evidence tending to show that fact is admissible. Kunde v. State, 22 Tex. App. 97, .3 S. W. 325. In that case it was held that threats and acts of a codefendant proximately connected with the transaction, .tending to show that he committed the crime, are admissible. Of course, the question would then arise as to whether appellant on the occasion so conducted himself as to be a principal in the transaction. If he was standing out in front, keeping watch, while Barefield and Ford broke and entered the saloon, he would be a principal. The court submitted properly the law as to who are principals, but he nowhere in the charge instructed the jury that the mere presence of appellant at the time and place of the commission of the crime would not constitute him a principal, unless he aided by acts, or encouraged by gestures, those engaged in the offense. Under appellant’s testimony he had the right to have presented the law applicable to the state of case upon which he relied for a defense. This was not complained of before the charge was read to the jury, but inasmuch as the case will be reversed on other grounds, we call attention to it so that the law may be properly applied on another trial.

Appellant testified that when he saw Barefield and Ford in the saloon, and understood what they were doing, he at once left. He testified to meeting several people on his way home, and he desired to prove by these people that he had nothing in his hands, and his clothing gave no evidence that he had anything in his pockets or concealed beneath his clothing. He further desired to prove by city .detectives Lyons and Martin that the morning after the burglary they searched the house of appellant and found none of the stolen property in his house nor in his possession. Detective Lyons did testify that he searched appellant’s premises and found none of the stolen property. When the state went to cross-examine tMs witness the court remarked:

“All this cross-examination of the testimony of this witness could have been eliminated upon objection by the state, because the testimony is immaterial.”

Exception was reserved to the remark that the court considered immaterial the testimony of Detective Lyons that he had searched the premises of appellant and found none of the stolen property. This remark was calculated to cause the jury to give but little, if any, weight to Lyon’s testimony. Appellant also offered Detective Martin as a witness, and desired to prove by him that he searched appellant’s premises and found none of the missing property. The court sustained objection to this testimony, and excluded it. We think this testimony clearly admissible, and the remark of the court was improper. If those officers had found in their search a portion of the missing property, this court has held recent possession of stolen property, unexplained, will sustain a conviction. Jackson v. State, 28 Tex. App. 370, 13 S. W. 451, 19 Am. St. Rep. 839; Brown v. State, 56 Tex. Cr. R. 87, 119 S. W. 312; Strickland v. State, 78 S. W. 689. Then why should not evidence that appellant’s premises were searched by the officers and none of the stolen • property found be admissible as a circumstance' in his favor, as much so as the circumstance that goods were found be admissible for the state? One is a circumstance tending to show guilt, while the other is a circumstance tending to support Ms plea of innocence, and especially in this case does this testimony become very material, for appellant admits going in the saloon, as he says, being asked by Bare-field and Ford, who have pleaded guilty to burglarizing this saloon on this occasion. The goods were found, or a portion of them, apparently from this record, in the possession of Ford and Barefield, but there is no evidence that any of the goods were found in appellant’s possession,' or in the possession of his son or Hainey, the three men the Fetters saw together, and saw enter the saloon. Certainly the testimony would have a strong tendency- to show that appellant’s testimony as to why he entered the -saloon and immediately left when he saw what was occurring was probably true, and if true he was entitled to an acquittal.

On another trial the court will admit the testimony of the res gestae statements of Barefield; he will admit the testimony that from the appearances of appellant’s clothing he had none of the stolen property in his pockets or concealed about his person, while on Ms way home from the saloon, that is, so far as the witness could judge from appearances; he will admit the testimony that appellant’s premises were searched by Officers Lyons and Martin, and they found none of the stolen property in his possession, nor on his premises; he will admit the pleas of guilty of Barefield and Ford that they committed this burglary, and then he will properly apply , the law as to who are principals, presenting appellant’s theory as made "by the testimony, as well as the law as applicable to the case as made by the state’s evidence.

If Barefield and Ford had already broken and entered the saloon before appellant, his son, and Hainey went into it, they would not be guilty as principals with Bare-field and Ford, unless they were acting with them. If there was no acting together, and Barefield and Ford entered from the rear or some other door before appellant, his son, and Hainey entered at the front door, appellant could not be held responsible for the acts of Ford and Barefield. He would not be a coprincipal with them or either of them, even though he entered the saloon at the invitation of Barefield, who was a former owner of the saloon, after the entry had been made. The testimony of Mr. and Mrs. Fetters for the state would have a tendency to show that appellant, Ms son, and Hainey were not acting with Barefield and Ford, even if appellant, his son, and Hainey broke, within the contemplation of law, the front door. Mr. and Mrs. Fetters did not see Bare-field nor Ford. They only saw the other three, and appellant’s explanation, if true, would show that he was not at least acting with Ford and Barefield. Of course, the circumstances raise the issue that he may have been acting with them, and the law should be properly submitted presenting the various phases as made by the testimony.

We do not deem it necessary to discuss the other questions raised.

The judgment is reversed, and the cause remanded.

On Motion for Rehearing.

The state has filed a motion for rehearing, insisting that bill of exception No. 6 is insufficient in that the answer of the witness is not stated and copies bill No. 7 in the motion. This was not the bill we held sufficient, but it was bill No. 6 which complained of the comment of the court on the weight to be given the testimony of the witness Lyons. Lyons had testified that he went to the home of appellant to see if he could find any of the articles stolen out of the burglarized house; that he searched the house and did not find anything they were looking for. After the witness had so testified, bill No. 6 shows that when the state started to cross-examine this witness, the court remarked:

“All this cross-examination could have been eliminated upon objection by the state, because the testimony is immaterial.”
Defendant: “We reserve an exception to the remark of the court.”

The defendant then desired to prove similar testimony to that of Lyons by Detective Martin — to prove by Martin that defendant had none of the stolen goods at his house. The court refused to permit him to prove these facts by Martin, and sustained an objection to his testimony. Defendant then proceeds in the bill to state that he objected to the remarks of the court as being upon the weight to be given the testimony; and, as the remarks of the court were calculated to and would- cause the jury to give no weight to the testimony of Detective Lyons that he searched appellant’s house and found none of the stolen goods in appellant’s possession, we held this bill presented error, and are still of that opinion, and the question is sufficiently presented in the bill to authorize us to review the action of the court.

The motion for rehearing is overruled.
      <@=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <g^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, J. DAVIDSON, J.

text:
    WHETSTONE v. STATE.
    (No. 3928.)
    (Court of Criminal Appeals of Texas.
    Feb. 2, 1916.
    On Motion for Rehearing, Feb. 23, 1916.)
    1. Ceiminai, Law @==>1099 — Appeai>-State-hent oe Facts — Late Filing.
    The statement of facts with reference to the denial of new trial for newly discovered evidence, having been filed after adjournment, cannot be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent Dig. §§ 2866-2880; Dec. Dig. <©= 1099.]
    2. Criminal Law <©=>511 — Accomplice Testimony — Corroboration.
    Corroboration of accomplice being required only to tend to connect defendant with commission of the crime, and not to connect him therewith, it is enough that, on reward being offered ■for papers taken in a burglary, defendant, who was with the accomplices on the night of the crime, brought in some of them, and afterwards others of them, on further reward being offered, and stated that he found them buried on or-near land in his possession, and, on being asked as to the sack in which they had been, brought in one, and, on it proving not to be the one, brought in another, stating, as was the fact, “This is the sack.”
    [Ed. Note. — For other cases, Law, Cent. Dig. §§ 1128-1137; 511.] see Criminal Dec. Dig. <©=>
    Appeal from District Court, Cass County; H. F. O’Neal, Judge.
    Willie Whetstone, Jr., was convicted, and appeals.
    Affirmed.
    Figures & Stewart, of Atlanta, for appellant. C. O. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

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

The state’s case is made by the evidence of two accomplices. The evidence is to the effect: That the three went into the burglarized house at night and committed the theft of some property, notes, and mill checks, and some other matters. That in order to do this they had to break a safe. The safe would not lock, but it could be bolted, and was bolted on this particular night. Defendant was familiar with the situation of the safe, having worked in the store a short time prior to tlie burglary. It is unnecessary to go into a detailed statement. Briefly, the evidence shows that the defendant, with Nat Benjamin and John Williams, entered the store and took the things. Some of them were buried near a field belonging to Mr. Snipes, where they were subsequently found. Appellant brought some of the property back to the owner of the house and delivered them to him, stating during the conversation: That he had found them out in the woods near where he was working. That subsequently he found some more of the property and returned it. Mr. Morris paid him something for this. There are quite a lot of circumstances that tend to corroborate the testimony of the accomplices and connect appellant with the transaction. The contention of appellant is that the evidence is not sufficient. We are of opinion that it is. The accomplices or associates in the burglary make a plain case, and the circumstances and incidents connected with the whole matter, we think, sufficient to show that appellant was connected with it.

The remaining proposition for reversal is based upon newly discovered evidence. There was a statement of facts, with reference to this phase of the case, filed after adjournment of the court; the court having adjourned early in October, and the statement of facts with reference to the motion for new trial was not filed until early in January, subsequent-to the adjournment of court. Under the decisions of this state this statement of facts cannot be considered. There are quite a number of opinions so holding, and the reasons are fully given in those various opinions. It is unnecessary to go into any further discussion of that question.

The judgment will be affirmed.

DAVIDSON, J., not present at consultation.

On Motion for Rehearing.

DAVIDSON, J.

This case is before us on motion for rehearing. Preliminary to the motion, it is contended by appellant’s counsel that the opinion states, and the writer is responsible for the statement, that the court was in error in stating that appellant had worked for the alleged owner of the burglarized house. Critically speaking, perhaps, that statement went a little broad. I might collate facts and circumstances which I think would justify the statement; but, giving the benefit to the defendant, the writer will state, so that the appellant may not be injured by any such statement, that that statement, perhaps, was a little strongly put.

The main contention, and the only serious contention in the case, is whether or not the state’s witnesses were sufficiently corroborated. They were accomplices; admittedly so. Counsel states the proposition a little strong in contending there must be evidence independent of the accomplices which connects appellant with the burglary. That is stating the law a little stronger that the statute, which requires that the corroboration will only tend to connect the defendant with the commission of the offense, where accomplice testimony is used by the state. We have reviewed this testimony again, and are still of opinion that it is sufficient to tend to connect the defendant with the commission of the offense. The accomplices make a case. The evidence shows that the two accomplices and defendant were together on the night of the burglary prior to it, and also that they were at a party or social function and left that party. The accomplices testified they were at the party together, and that they discussed the matter of burglarizing the house and entering the store of the alleged owner, and that appellant was active in the conspiracy, and went with them, and the three broke into the house, committed the burglary, got quite a lot of papers, not much money, and went away. Some of the evidence suggests that appellant hid the stolen papers. Eater there was a reward offered by the owner for the recovery of these papers. Appellant brought in some of them. There were others missing, and a heavier reward was offered for their recovery. The last-mentioned papers seem to have been notes of some importance and valuable. Those first brought in by appellant seem to have been time checks, or mill cheeks, or something of that kind, amounting to a sum less than $20; but the others were larger in amount and value. Later appellant brought all these in. He said he was working on Mr. Snipes’ place, and that he had occasion to attend to a call of nature, and went across the fence in the edge of the woods, and unearthed the first batch of papers, and carried them in and delivered them, and later he went back and unearthed the others and took those in. During the conversation between himself and the owner of the house there was something said about a sack in which these papers were placed. Appellant brought in a sack, but it proved not to be the one. At the time he brought it he asked the owner if this was the sack. The owner told him, “No,” and he went off and returned with another sack, and said, “This is the sack.” It was the sack stolen from the house. There were other facts and circumstances detailed, including the fact that the land on which the property was found was in appellant’s possession. At least, it was found on land adjoining that controlled by appellant, if not directly on that in his possession. These facts were along this same line developing fully these occurrences and statements, but we deem it unnecessary to go into details, but are of opinion that this was sufficient to tend to connect the defendant with the burglary.

The motion for rehearing is overruled.
      <@=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, P. J.

text:
    MARTIN v. STATE.
    (No. 3950.)
    (Court of Criminal Appeals of Texas.
    Feb. 9, 1916.)
    Ceiminal Raw <§=31159^Conviotion — CONCLUSIVE NESS .
    Where the evidence for the state, which was apparently believed, was sufficient to sustain a conviction, and that for the defendant, if believed, would have been sufficient to have secured his acquittal, the sufficiency of the evidence was solely for the jury, and a conviction could not be disturbed on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3074-3083; Dec. Dig. <@=3 1159.]
    Appeal from Fayette County Court; George Willricli, Judge.
    J. M. Martin was convicted of aggravated assault, and lie appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

This is an appeal from a conviction for aggravated assault, with only a fine of $25 assessed.

There is no bill of exceptions and no complaint of the charge of the court. The sole question is whether or not the evidence is sufficient to sustain the conviction. The testimony of the state’s side, which was evidently believed, was amply sufficient to sustain the conviction. That of the appellant’s side, if the jury had believed it, would have been sufficient to have secured his acquittal. That question, however, was solely for the jury. We cannot disturb their verdict.

The judgment is affirmed.


text:
    CROCKETT v. STATE.
    (No. 3947.)
    (Court of Criminal Appeals of Texas.
    Feb. 9, 1916.)
    Criminal Law <@=3-1090 — Appeal and Error
    —Questions Reviewable.
    On appeal from conviction of crime, where there is no bill of exceptions, and no complaint is made to the charge of the court, the only question presented is whether or not the evidence is sufficient to sustain the conviction.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. <@=>1090.]
    Appeal from District Court, Sabine County; A. E. Davis, Judge.
    Wilson Crockett was convicted of manslaughter, and he appeals.
    Affirmed.
    J. W. Minton, of Hemphill, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of manslaughter, and assessed the lowest punishment. ■

The sole question is whether or not the evidence was sufficient to sustain the conviction. There is no bill of exceptions, and no complaint to the charge of the court.

We have carefully read the testimony more than once, and think it clear that the evidence was sufficient to sustain the verdict. We can see no necessity for detailing the testimony.

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


text:
    HOLT v. STATE.
    (No. 3948.)
    (Court of Criminal Appeals of Texas.
    Feb. 9, 1916.)
    Criminal Law <@=>112íL-Appea:[>-Review— Statement oe Facts.
    Where no statement of the evidence on the trial accompanies the record, and no bill of exceptions is contained therein, there is nothing in the motion for a new trial which the Court oí Criminal Appeals can review.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2939, 2946-2948; Dec. Dig. <@=j1124.]
    Appeal from District Court, Sabine County; A. E. Davis, Judge.
    B. N. Holt was convicted of burglary, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

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

No statement of the evidence introduced on the trial of the case accompanies the record; neither does the record contain any bill of exceptions. Under such circumstances, there is nothing presented in the motion for a new trial we can review.

The judgment is affirmed.


text:
    Ex parte CASTORENA.
    (No. 3925.)
    (Court of Criminal Appeals of Texas.
    Feb. 9, 1916.)
    Bail <@=353 — Habeas Corpus <@=3102 — Application eor Discharsb — Authority.
    Upon an application for discharge from an order binding him over to await the action of the grand jury, the Court of Criminal Appeals looks to see if there is testimony tending to connect defendant with the commission of the offense, and where the crime of robbery and murder was established and the accomplice testimony related only to defendant’s connection therewith, and when the bail bond was fixed at only $1,000, the Court of Criminal Appeals would not discharge, or reduce the amount.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. § 211; Dec. Dig. <@=353; Habeas Corpus, Cent. Dig. §§ 87-89; Dec. Dig. <¿=102.]
    Appeal from District Court, Cameron County; W. B. Hopkins, Judge.
    Application by Martin Castoreña for his discharge from an order binding him over to await the dction of the grand jury, or to have hi^ bail reduced. From the order denying the application, petitioner appeals.
    Affirmed.

      E. K. Goodrich and Robt. A. Kitchen, both of Brownsville, and K. O. Gaines, of Austin, for appellant. O. 0. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Inasmuch as the record in this case has been supplemented with a certified copy of notice of appeal, the opinion rendered last week dismissing this cause is withdrawn, and the cause is reinstated.

Appellant insists that, as the only person testifying to facts connecting him with the commission of the robbery and murder is a confessed accomplice, and therefore insufficient to sustain a conviction, he should be discharged or his bail reduced. Upon an application to be discharged from an order binding one over to await the action of the grand jury, we look to see if there is testimony tending to connect him with the commission of an offense, and, if so, we have no authority to discharge him from custody. The crime in this case is shown beyond peradventure of doubt by ample testimony, and it is only appellant’s connection therewith that is shown by accomplice testimony only. As the crime was a crime upon express malice, doubtless the trial court took into consideration the weakness of the case made against appellant by the state in fixing the bond at only $1,000. The crime shown is of that character we would not feel authorized to reduce the bond, for, if appellant should be held to bail at all, the bond is a reasonable one.

Judgment affirmed.


author: DAVIDSON, J.

text:
    Ex Parte GOODMAN.
    (No. 3956.)
    (Court of Criminal Appeals of Texas.
    Feb. 9, 1916.)
    1. Extradition <@=^35 — Interstate—Aeeida-VIT— Ol'EENSE— SUEEICIENCX.
    Under the act of Congress (U. S. Comp. St. 1913, § 10126) and the laws of Texas (Vernon’s Ann. Code Cr. Proc. 1916, art. 1088) requiring that a fugitive from justice from another state, sought to be held as such, be charged with an offense in the demanding state, an affidavit that affiant had good reason to believe and did believe that a party was a fugitive from justice from Louisiana, where he had on a given date committed a criminal offense under the laws of Louisiana, and that he fled into Texas, where he might be found, was insufficient to justify the alleged crimináis arrest as a fugitive from justice.
    [Ed. Note. — Eor other cases, see Extradition, Cent. Dig. § 39; Dec. Dig. <¿¿>35.]
    2. Extradition <@=»21 — Interstate—Federal Jurisdiction.
    The laws of Texas touching the return of criminals to other states are governed by the federal act touching the matter.
    [Ed. Note. — For other cases, see Extradition, Cent. Dig. § 26; Dec. Dig. <&^>21.]
    3. Extradition <@=^32 — Interstate — Complaint Charging Crime. ■ ■
    A complaint, filed in Louisiana, charging violation of its criminal law, based only upon belief or information, is insufficient as authority for a requisition demand on the Governor of Texas for the return of the offender.
    [Ed. Note. — For other cases, see Extradition, Cent. Dig. §§ 36-38; Dec. Dig. <S=>32.]
    Application for a writ of habeas corpus on behalf of Bob Goodman. Applicant discharged from custody.
    B. y; Cummings, of Hillsboro, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

This record is very brief, and can be briefly stated. It is an original application for a writ of habeas corpus to this court asking for a discharge under what is supposed to be an extradition proceeding. As a basis for this case Mr. Gross made an affidavit that he had good reason to believe and did believe that Bob Goodman is a fugitive from justice from the state of Louisiana; that he did on or about the 15th of May, 1915, in said state of Louisiana, willfully, maliciously, and feloniously have carnal knowledge with Leona Daily, she being an unmarried female between the age of 12 and 18 years, and that said act so committed by Bob Goodman was then and there and is now a violation of the penal laws of the state of Louisiana, and that said Goodman has fled from that state where he committed said offense to the state of Texas, and is now to be found in Hill county, Tex.

It will be noticed that this affidavit only states that the affiant had reason to believe that the applicant is a fugitive from justice from a sister state, and that he had carnal intercourse with a girl between 12 and 18 years of age, she being unmarried, and that said act was a violation of the laws of Louisiana, and that he had fled from that state into Texas, and is now in this state. This is not sufficient. There are no extradition papers in the record, and, so far as the case is concerned, it does not show that any were issued by the Governor of this state honoring a requisition from the Governor of Louisiana, nor is it stated that applicant stood charged in Louisiana by indictment or complaint with this offense. Under the act of Congress (U. S. Comp. St. 1913, § 10126) this is not sufficient, nor is it sufficient under the laws of Texas (Vernon’s Ann. Code Crim. Proc. 1916, art. 1088), which, of course, must be governed by the congressional act. Had a complaint been filed in Louisiana charging some violation of the law by reason of sexual intercourse, based only upon belief or information, it would not have been sufficient as authority for the requisition demand on the Governor of this state. This is settled by the authorities, which are not necessary to De cited. But this complaint does not allege or assert, directly or indirectly, that the applicant had been charged in any legal way in Louisiana with an offense; therefore it is not sufficient. Under the act of the Legislature it is necessary, where the party is a fugitive from justice and is sought to be held as such, that he be charged with an offense in the demanding state. Talcing this as a basis, an affidavit may be made holding the alleged fugitive awaiting the requisition demand, but there is nothing in this case indicating those things; therefore we are of opinion that the applicant is entitled to his discharge, which is accordingly ordered.
      <@^Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    SPOONER v. STATE.
    (No. 3944.)
    (Court of Criminal Appeals of Texas.
    Feb. 9, 1916.)
    Sunday <§=>6 — Places ox Amusement — Statute-Violation.
    Defendant, who gave his moving picture show on both the afternoon and evening of a Sunday, after advertising that it was for the benefit of the inmates of a tuberculosis sanitarium, who sold no tickets and demanded no admission fee, and who represented that he would donate to such inmates all receipts over and above his actual expenses, and who displayed at the entrance a large sign reading “Free Contribution,” “Pay What You Wish,” “Benefit Carlsbad Sanitarium,” and who, out of gross receipts of $33.30, took out his actual expenses for the day, and turned the balance of $18.55 over for such inmates, violated the statute punishing the proprietor of any place of amusement permitting his place to be open on Sunday and defining places of amusement to include theaters and amusements for which an admission fee is charged.
    [Ed. Note. — For other cases, see Sunday, Cent. Dig. §§ 11, 12; Dec. Dig. <®=>6.]
    Appeal from Tom Green County Court; Oscar Frink, Judge.
    Dad Spooner was convicted for violating the law in operating a moving picture show on Sunday, and he appeals.
    Affirmed.
    C. E. Dubois, of San Angelo, for appellant. C. C. McDonald, Asst Atty. Gen., for the State.
   PRENDERGAST, P. J.

This is an appeal from a conviction for violating the law in operating a picture show on Sunday. The case was tried before the court without a jury on agreed facts. The court assessed the lowest punishment

The facts are that appellant gave his picture show on both the afternoon and night of Sunday, January 2, 1916. He advertised, in effect, that it was for the benefit of the inmates of the tuberculosis sanitarium located at Carlsbad, near San Angelo. No tickets were sold nor admission fees demanded. He represented he would donate to the trustees for said inmates all he received over and above his actual expenses, and he placed in a conspicuous place, at the entrance where the shows were given, a large sign in these words, “Free Contribution,” “Pay What You Wish,” “Benefit Carlsbad Sanitarium.” The gross receipts from these two entertainments were $33.30. He took out of this amount his actual expenses for films, electricity, lights, one day’s rent of building and for labor of three hands, total, $14.75, which was his expenses for that day, thus leaving a balance of $18.55, which he turned over for said inmates.

There can be no question but this was a plain and direct violation of the statute, and his conviction and punishment were proper. In the recent case of McLeod v. State, 180 S. W. 117, the facts were somewhat similar, but nothing like as strong as the facts in this ease. We see no necessity of again discussing the question.

The judgment is affirmed.


text:
    HILES v. STATE.
    (No. 3936.)
    (Court of Criminal Appeals of Texas.
    Feb. 2, 1916.)
    Criminal Law <§=^40íG-Evidence — Admissibility.
    The clothes worn by decedent at the time he was shot by accused are admissible to show where the wounds took effect in the body of decedent.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 873, 891-893, 1457; Dec. Dig. <S=»404.]
    Appeal from District Court, Culberson County; Dan M. Jackson, Judge.
    W. J. Hiles was convicted of crime, and he appeals.
    Affirmed.
    Joe Irby', of Van Horn, and J. W. Parker, of Pecos, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

This is the second appeal in this case. The first is reported in 73 Tex. Cr. R. 18, 163 S. W. 717, where a sufficient statement of the case is made. There is no substantial difference in the •record on this from the other appeal.

Appellant was convicted of manslaughter and assessed the lowest punishment. The evidence was amply sufficient to sustain the verdict.

There are but three bills of exceptions. The first raises again the question of whether or not the testimony of the witness Paddock in substance and effect showing a conditional threat by appellant was admissible. The second bill also raises the question passed upon before of whether or not the testimony of Moorehead, as to what appellant said to him as to the material facts in the case, was admissible; he claiming that he was under arrest at the time. Both these questions were fully discussed and correctly decided against appellant in the former appeal. There is no necessity of further stating or discussing either of them now. The court below correctly ruled on both questions.

The next bill complains of the introduction in evidence of the clothes worn by deceased when appellant shot him. It became necessary for the state to show where the wounds took effect in the arm and body of the de-«eased, and clearly, the clothes were admissible for that purpose. This is so well established, and has been held so many times by this court, we deem it unnecessary to cite the cases.

The judgment is affirmed.

DAVIDSON, J., not present at consultation.
      tg^For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 182 S.W.-71


text:
    NOE v. STATE.
    (No. 3916.)
    (Court of Criminal Appeals of Texas.
    Feb. 2, 1916.)
    1. Robbery <@=>17 — Indictment — Description of Property — Sufficiency.
    Under Code Cr. Proc. 1911, arts. 458, 468, providing that a general description of property by name, kind, quality, number, and ownership shall be sufficient, and that in indictments for theft, etc., of coin or paper current as money it shall be sufficient to describe the property in general terms as money, an indictment for robbery of “$11 in money, which * * * passed current as money of the United States, * * * and 0f the value of $11,” sufficiently described the property.
    [Ed. Note. — For other cases, see Robbery, Cent. Dig. §§ 16-23, 26; Dec. Dig. <§=>17.]
    2. Criminal Law <@=>1092 — Bill of Exceptions — Time to File.
    Bills of exceptions, approved and filed after the time fixed by orders allowing the filing of bills after adjournment of court, cannot be considered, but must be stricken out on motion.
    [Ed. Note. — For other cases, sae Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2919; Dee. Dig. <§=>1092.]
    Appeal from Criminal District Court, Dallas County; W. L. Crawford, Jr., Judge.
    Claud Noe was convicted of robbery, and he appeals.
    Affirmed.
    Louis Wilson, of Dallas,- for appellant. C. G. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of robbery, and his punishment assessed at seven years in the penitentiary.

The indictment alleges that appellant robbed R. W. Burden of “eleven dollars in money, which then and there passed current as money of the United States of America, and of the value of eleven dollars.” All the other allegations in the indictment are regular and sufficient. Appellant contends that this description of the money was a fatal defect in the indictment. Both under our statute and the many decisions of this court, this description of the money was clearly sufficient. Articles 458 and 468, C. C. P.; Sparks v. State, 177 S. W. 968; Ferrell v. State, 68 Tex. Cr. R. 495, 152 S. W. 901; Sims v. State, 64 Tex. Cr. R. 435, 142 S. W. 572, and the cases therein cited. A large number of others could be cited, but it is unnecessary.

The court below by two separate orders allowed altogether 80 days after the adjournment of court at which appellant was tried for him to file bills of exceptions. They were not filed within that time, hut show to have both been approved and filed several days thereafter. The motion of the Assistant Attorney General to strike them out and not consider them must therefore be sustained, both under the statute and the uniform decisions of this court.

The evidence was unquestionably sufficient to sustain the verdict. Appellant’s bills of exception being filed too late and struck out, there is nothing else raised which can be reviewed.

The judgment is therefore affirmed.

DAVIDSON, J., not present at consultation.