text:
    LEWIS v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 7, 1914.)
    1. Criminal Law (§ 1092) — Exceptions — Approval by Trial Judge.
    Where matters of exception are presented in a motion for a new trial, exceptions to the charge, though not approved by the trial judge, are considered as grounds of the motion.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834r-2861, 2919; Dec. Dig. § 1092.]
    2. Burglary (§ 4) — Breaking—“House.”
    A show case or show window which was made into and was a part of a house constituted a part of the “house,” so that a breaking thereof and the taking of shoes therefrom was the breaking of a house.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. § 4; Dec. Dig. § 4.

    For other definitions, see Words and Phrases, vol. 4, pp. 3351-3357.]
    3. Burglary (§ 22) — Indictment — Ownership.
    Under the statute providing that ownership and possession may be alleged in either of the owners, ownership was properly alleged in the head of a firm, consisting of himself and his brother, who was in and about the store, and was in possession as one of the joint owners.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 55-61, 66: Dee. Dig. § 22.]
    4. Burglary (§ 41) — Sufficiency of Evidence-Time of Commission.
    Evidence, in a prosecution for burglary, held sufficient to show a nighttime burglary.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 81-85; Dec. Dig. § 41.]
    5. Burglary (§ 42) — Sufficiency of Evidence — Possession.
    Evidence, in a prosecution for burglary, held sufficient to show defendant’s criminating possession of goods taken from a store, though they were actually in the grip of another.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 63, 66, 86-88; Dec. Dig. § 42.]
    6. Burglary (§ 41) — Evidence—Intention.
    The breaking of a show window of a store and the taking of shoes therefrom clearly showed that the breaking was for the purpose of committing the crime of theft.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 81-85; Dec. Dig. § 41.]
    7. Criminal Law (§§ 763, 764) — Trial—Instructions — Weight of Evidence.
    In a prosecution for burglary, an instruction that if the jury, hearing in mind a definition given, believed from the evidence that defendant with another, on or about a certain date, forcibly entered a house with intent to commit the crime of theft, he would be guilty, was not objectionable as a charge on the weight of the evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1731-1748, 1752, 1768, 1770; Dec. Dig. §§ 763, 764.]
    8. Bueglary (§ 41) — Sufficiency of Evidence — Participation by Defendant.
    In a prosecution for burglary, evidence held to show that defendant was connected with or participated therein.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 81-85; Dee. Dig. § 41.]
    9. Criminal Law (§ 792) — Instructions — Principals.
    Where the facts and circumstances were sufficient to justify a finding that parties acted together in the commission of the burglary, a charge on the law of principals was proper.
    LEd. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1818-1820; Dec. Dig. § 792.]
    Appeal from District Court, Nueces County; W. B. Hopkins, Judge.
    Dave Lewis was convicted of burglary, and he appeals.
    Affirmed.
    Atkinson, Graham & Atkinson, of Houston, and Dawson & Ward, of Corpus Christi, for appellant. C. E. Lane, Asst Atty. Gen., for the State.

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

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

   DAVIDSON, J.

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

There are no bills of exception in the record. The matters are presented in the motion for new trial. There is in the record what appellant styles his exceptions to the charge, but these exceptions are not approved by the judge; therefore they are considered as grounds of the motion for a new trial.

It is contended the evidence does not show that the burglary was committed by breaking a house. The facts show that a show case or show window was broken, and from it was taken a lot of shoes. The evidence shows that this show case or show window was made into and was a part of the house. We think this is sufficient to constitute it a part of the house.

There are several matters presented, viewed in different lights, from which it is contended the evidence is not sufficient to support the conviction.

First, that the ownership is not properly alleged in S. J. Lichtenstein. We think this shows no merit, for the statute provides that ownership and possession may be alleged in either of the owners. In this particular case S. J. Lichtenstein seems to have been the head of the firm. Anyway, the evidence shows that it belonged to him and his brother, and that he was in and about the house, and was not absent from the county or state, and was in possession as one of the joint owners. The evidence does not show the possession to be exclusively in the alleged owner, but it does show that he was actively about the house, and one of the owners of it; it being a mercantile establishment.

Second, it is contended the evidence does not support the conviction in that it does not show the house was broken. Enough has been said above with reference to this matter.

Third, it is urged the evidence does not show a nighttime burglary. We think there is no merit in this contention. The defendant and Williams, his supposed confederate, were seen in Corpus Christi on the evening before the burglary at night. It is shown that the house was closed at the usual hour of closing business, and the show case had «not then been broken or entered. The next morning early, when parties went to the store for the purpose of opening, it had been broken, and early that morning appellant and Williams were found, 75 miles from there, at Skidmore, in possession of a lot of shoes which came out of this show case. The circumstances, we think, exclude every reasonable hypothesis that the house was broken in the daytime, and show beyond any reasonable doubt, and exclude every doubt of the fact, that it was broken in the nighttime.

Fourth, it is contended the evidence is not sufficient to show possession in appellant, or criminate him with possession of the goods taken from the house. Appellant and Williams had been seen about the streets of Corpus Christi, and were together on the evening prior to the burglary that night; they were together and strangers in town; they were found together early the following morning in a box car at Skidmore, something like 75 miles from Corpus Christi, in Bee county; there was a grip found that seems to have been the property of Williams, in which appellant had one or more articles, and in which the shoes were found. Taking all the facts and circumstances together, we are of opinion the evidence shows they were together and acting together, and that the mere fact that the shoes were in the grip belonging to Williams is not sufficient to show that appellant was not a particeps criminis in the burglary, and it .would make no difference, if the shoes were in Williams’ grip, if they acted together in the burglary. The disposition of the shoes, or where they were found after the burglary, would not disprove of itself the burglary if all the facts taken together excluded every reasonable hypothesis except the participancy of the parties in the burglary. We think this evidence is sufficient to show that fact.

The court’s charge is criticised in that part of it where it defines the term “entry,” on the ground that the evidence does not show that the house was broken, or that the house was under the control of or occupied hy S. J. Lichtenstein. Enough has been said with reference to this matter already. We are of opinion that the evidence is sufficient to show that the window was a part of the house, being built into its walls, and part of the house itself, and not an independent show case, movable.

That part of the charge is also criti-cised which says: “You are further instructed that the indictment in this case having charged that the burglarious entry was made with the intent to commit the crime of theft,” etc.; there being no evidence on which to base said charge, or any part of said section. We cannot agree with this contention. The house was broken and shoes taken. This clearly shows the breaking was for the purpose of committing thé crime of theft. .

That part of the charge is also criti-cised which reads as follows: “Now, bearing in mind the foregoing definition, if you believe from the evidence that the defendant with another, on or about the 14th day of April, 1913, as alleged, by force did enter the house of S. J. Lichtenstein as charged in the indictment, with the intent to commit the crime of theft, you will find him guilty of burglary,” because there is no evidence justifying said charge—that is to say, there is no evidence to establish the fact that defendant was connected with the alleged burglary, nor that he acted with or in any way participated in the said burglary with any one —and the said charge is on the weight of the evidence. We do not believe it is a charge on the weight of evidence. The jury was instructed if they believed from the evidence that defendant with another entered the house, etc. This puts the matter to the jury in a way, if they could find from the evidence that appellant and another party entered the house and took the goods, appellant would be guilty. We think this is the correct way of placing the matter in the charge.

We are of opinion, further, that the criticism that there was no evidence to establish the fact that defendant was connected with the alleged burglary, or that he acted with or participated in the burglary, is not well taken. It is a case of circumstantial evidence. The two parties were seen together around the streets of Corpus Christi; they disappeared on the same train, or at least were found the next morning after the burglary together 75 miles distant and in possession of the stolen property. The three exceptions to the charge are based upon the idea and proposition that the charge was wrong in that it authorized the jury to find appellant guilty if the property was that of S. J. Lichtenstein, and was taken without his consent, and from his premises, when, in effect, it is contended it is shown by the evidence the property did not belong to Lichtenstein exclusively, nor is it shown by the evidence that his house was entered. We think these matters have been sufficiently mentioned without requiring further discussion.

The last exception is found in the criticism of the court’s charge because he charges on the law of principals, the contention being there is no evidence to connect the defendant with the crime, nor to show that he participated with another. This has been, we think, sufficiently discussed. It is true, this is a case of circumstantial evidence, but the facts and circumstances are sufficient to justify the jury in finding the parties acted together, and are sufficient to justify the court in giving the law of principals in

We are of the opinion there is no reversible error in this record, and the judgment is affirmed.


source: Caselaw Access Project

author: PRENDERGAST, P. J.

license: Public Domain

text:
    ALLEN v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 17, 1913.
    Rehearing Denied Jan. 14, 1914.)
    Criminal Law (§§ 1092, 1099)—Statement •- ojt Facts—Bills or Exceptions—Approval.
    A statement of facts and bills of exceptions, not approved by the judge trying the case, but by his successor, cannot be considered on appeal.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2866-2880, 2919; Dec. Dig. §§ 1092, 1099.]
    Appeal from Criminal District Court, Dallas County; W. L. Crawford, Jr., Judge.
    Charlie Allen was convicted of murder in the second degree, and he appeals.
    Affirmed.
    W. W. Nelms, of Dallas, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, P. J.

The appellant appeals from a conviction of murder in the second degree, with a penalty of 25 years fixed as his punishment.

The case was tried in the lower court and the proceedings had before Judge Barry Hil-ler while he was judge of that court. There is in the record what purports to be a statement of facts and bills of exceptions, approved long afterwards by Judge Crawford, his successor, instead of by him. This case is in precisely the same condition as the case of Will Porter v. State, 160 S. W. 1194, from Dallas county, recently decided, but not yet officially reported. Upon motion of the Assistant Attorney General, and on authority of that case and Richardson v. State, 158 S. W. 517, and the statute, the said purported statement of facts and bill of exceptions herein are struck out and cannot be considered. Without them, there is no question raised which can be reviewed.

The judgment is affirmed.


author: DAVIDSON, J.

text:
    COBER v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 7, 1914.)
    1. Criminal Law (§ 721*) — Trial — Argument oe Counsel.
    In a criminal prosecution, where accused did not take the stand, it is reversible error for the county attorney, in summing up the evidence, to state how the various witnesses testified that accused committed the crime, and that accused did not deny it.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1672; Dec. Dig. § 721.*]
    2. Criminal Law (§ 659*) — Trial—Conduct of Trial.
    In a criminal prosecution, where accused’s counsel was questioning one of the state’s witnesses as to what the sheriff and county attorney told him to say, it is highly improper for the sheriff to interfere in the cross-examination and tell accused’s counsel to sit down and keep his place, and the trial judge should suppress such conduct vigorously.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1460; Dec. Dig. § 659.*]
    Appeal from Liberty County Court; I. B. Simmons, Judge.
    Ben Cober was convicted of selling intoxi-
    cants on Sunday, and he appeals.
    Reversed and remanded.
    Marshall & Harrison, of Liberty, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was charged with selling intoxicants on Sunday.

While the county attorney was addressing the jury, he said, among other things; “Gentlemen of the jury, Joe Small says that this defendant sold this whisky, Henry Lacy says that he sold this whisky, and Mr. Finley says that he instructed him to sell it, and the defendant does not deny it.” The defendant did not take the stand as a witness, or testify in his own behalf. This argument or statement is a violation of the statute, which prohibits an allusion to the failure of a defendant to testify. We have had occasion to reverse quite a number of cases for the violation of this statute, and we again caution prosecuting officers to refrain from making such statements, allusions, and arguments. For this reason this judgment must be reversed, and the cause remanded.

Another bill recites that, while defendant’s counsel was cross-examining a witness named Baldwin, and after the witness had stated he had never talked with any one about the case, and after he had further stated in response to a question that he had talked with C. W. Carlisle, sheriff, and Mr. Cain, county .attorney, in the witness room about this case before he testified, and said he told them what he would swear to, defendant’s counsel asked him, “And what did they tell you to say?” And the said C. W. Carlisle, sheriff of Liberty county, being in the courtroom, arose and told counsel for defendant to “sit down and to keep his place, and that if he was going to practice law to practice law, and that he (Carlisle) was not going to stand for anything like that,” all of which occurred in the presence and hearing of the jury. To this appellant reserved a bill of exceptions. This is approved by the county attorney as being correct, as it is by the judge who tried the case. This should not have occurred. We call attention to it, so that in the future matters of this sort will not occur. The court should have promptly given his attention to this matter. The trial of eases should proceed in accordance with law, without the interference and interposition of outside parties. If the attorneys do wrong, or ask questions that should not be asked, opposing counsel should object, and the court should rule. It is not the duty, nor is it permissible, for parties outside of a case not engaged in it to act as the record shows the sheriff acted, and the court should have promptly rectified the matter. The trial of cases should be carried on in an orderly manner, and the court preserve its dignity and proper order. Just what effect this had upon the jury or upon the trial is a matter of conjecture; but such conduct should have been promptly suppressed, and, if necessary, the power of the court used in such way that the defendant’s right before the jury would not be injured by such conduct.

There are quite a number of bills of exception in the record; but, as they are presented, we are of the opinion they are not of sufficient importance to require a reversal of the judgment. One of the questions insisted upon was, in substance, that appellant proposed to prove it was the custom for parties selling intoxicants under license to sell on prescription on Sunday, and that this had been carried on at all times in the county, believing it to be no violation of the law, and until an opinion had been rendered by the Attorney General holding that it was a violation of the statute to so sell. There was no error in this ruling.

The judgment is reversed, and the cause remanded.


author: HARPER, J.

text:
    NOLEN v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 17, 1913.
    On Motion for Rehearing, Jan. 14, 1914.)
    1. Criminal Law (§ 1099) — Appeal—Statement of Facts — File Marks.
    A statement of facts, bearing no file marks and not showing when it was filed in the trial court, cannot be considered on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.]
    On Motion for Rehearing.
    2. Criminal Law (§ 1099) — Appeal—Statement of Facts — File Marks.
    Where the clerk of the trial court certified that he erroneously omitted the file marks from the transcript, the statement of facts must be considered on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.]
    S. Weapons (§ 17) — Carrying Concealed
    Weapons — Evidence—Sueficiency.
    Evidence held to sustain a conviction of unlawfully carrying a pistol.
    [Ed. Note. — For other cases, see Weapons, Cent. Dig. §§ 20, 22-33; Dee. Dig. § 17.]
    Appeal from Hardin County Court; W. W. Dies, Judge.
    P. H. Nolen was convicted of unlawfully carrying a pistol, and he appeals.
    Affirmed.
    Singleton & Nall, of Kountze, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted of the offense of unlawfully carrying a pistol.

The statement of facts which accompanies the record bears no file marks, and does not show when it was filed in the trial court, and under such circumstances we are not authorized to consider it. Yet we have read it, and we feel constrained to say that the trial court was fully authorized to adjudge appellant guilty of the offense charged. A jury was waived and the issue submitted to the court, and if we considered the statement of facts it would authorize the court to arrive at the conclusion at which he did arrive — that appellant was guilty of the offense charged.

The judgment is affirmed.

On Motion for Rehearing.

On a former day this case was affirmed, the statement of facts having no file marks thereon. A motion for rehearing has been filed, accompanied by a certificate of the clerk that it was by mistake that the file marks were left off, and that he erroneously omitted the file marks from the transcript; consequently appellant is entitled to have the statement of facts considered.

There is but one assignment of error in the motion for new trial — the insufficiency of the testimony — stated in several different ways. That appellant had the pistol on the date alleged is shown by all the testimony. His contention is that, as he owned a general store in one part of the town and a saloon in another part of the town, hearing that there was a row near his saloon, he had a right to carry a pistol from his general store to his saloon. If the testimony suggested that he was merely going from the store to the saloon, there might be strength in his contention. But the evidence discloses that, when he heard that a fight or row was on between some men near his saloon, his son-in-law went to quell the disturbance; that his son-in-law got into a fight, and then it was he appeared, not at his saloon, but at the point where the men were who had engaged in the row, pulled a pistol, and said, “You d-d s-n of a b-h get away from here,’’ and his pistol had to be forcibly taken away from him. The case was tried before the county judge without a jury, and he would be authorized to find from the testimony that appellant was on no peaceful mission — was not on his way from the store to the saloon, but was on mischief bent, if his pistol had not been taken,away from him.

The motion for rehearing is overruled.


text:
    HAYES v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 17, 1913.
    Rehearing Denied Jan. 14, 1914.)
    1. Seduction (§ 46) — Prosecution — Evidence.
    In a prosecution for seduction, evidence corroborating the prosecutrix held sufficient to support the conviction.
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. §§ 83-86; Dec. Dig. § 46.]
    2. Criminal Law (§ 507) — Corroborative Evidence.
    In a prosecution for seduction, the prosecu-trix is an accomplice, and her testimony must be corroborated by evidence tending to connect accused with the commission of the offense, to support a conviction.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1082-1096; Dec. Dig. § 507.]
    Appeal from District Court, McCulloch County; Jno. W. Goodwin, Judge.
    Sam Hayes was convicted of seduction, and he appeals.
    Affirmed.
    James Flack, of Llano, and Joe P. Flack, of San Saba, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted of the crime of seduction, and his punishment assessed at four years’ confinement in the penitentiary.

The only ground in the motion for a new trial is that the evidence is insufficient to sustain the conviction, in that it is contended that the testimony of Miss Lottie Ogle is not corroborated. That Miss Ogle’s testimony would show that she had been seduced is not disputed, but it is urged that there is no corroboration of her testimony that she and appellant had engaged in acts of intercourse. Counsel for appellant ably present this view of the case. It is not disputed that she is corroborated in the fact that she and appellant were engaged to be married — in fact two of his relations, an aunt and a cousin, Mrs. Lock'ner and Mrs. Spiller, both testify that appellant admitted to them they were engaged. Now, how can a female be corroborated in her testimony that an act of intercourse took place between her and a particular man? That she gave birth to a baby is proof positive that she bad had intercourse with some man, but would not corroborate her statement that it was with this particular man. However, it is a fact to be taken into • consideration with other testimony in the case, for it corroborates her in so far as to show that she had in fact had intercourse with a man. This is an act not committed upon the highways and byways. No respectable man and woman would engage in this act in the presence of another. Then of necessity it must be proven by circumstances, and can be proven by circumstances alone, and if the circumstances in a case are sufficient to lead the jury to believe that the act took place as testified to by prosecuting witness, the corroboration is sufficient. In this case the mother of Miss Ogle testified: “I know the defendant 'Sam Hayes, and have known him nearly all his life; the defendant visited Lottie frequently up until December 15, 1911; he was accepted in a familiar way at our home; he visited our house about once a week, and sometimes oftener, and when there were any parties or dances he would come and get my daughter and escort her there and back, and he was pleasant and nice when he was about our home, and we treated him the same' way; during that time no other man than the defendant was paying attention to my daughter.” Mrs. Lockner testified that she was a cousin of appellant; that she had frequently seen appellant and Miss Ogle together, and that appellant admitted to her he was engaged to Miss Ogle. Mrs. Spiller testified: ‘T remember hearing the report that Miss Lottie was in a family way; after I heard that report I had a conversation with Sam Hayes concerning the matter; I just went to him and asked him if he didn’t promise to marry Lottie Ogle, and he said he told her he might some time.” This was a virtual admission of both the act of intercourse and the promise of marriage. The testimony further shows that the engagement was of long standing, and appellant was the only man who had been keeping the company of Miss Ogle for two years prior to the act of intercourse. Under such record, that he was the person who was the father of her child, is sufficiently proven by the circumstantial evidence in the case; outside of and independent of her testimony, the jury would have been authorized to so find.

We do not wish to be understood as holding that the prosecutrix must be corroborated as to any particular fact in the case, but as she is an accomplice in law, when she testifies to a commission of a crime by a particular person, the evidence, independent of her testimony, must tend to connect the person on trial with the commission of that crime, and if it does so, the corroboration is sufficient in law.

The judgment is affirmed.


author: PRENDERGAST, J.

text:
    DICKERSON v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 14, 1914.
    Rehearing Denied Jan. 28, 1914.)
    1. Criminal Law (§ 202)- — Former Jeopardy— Identity of Offenses.
    In a prosecution, under Pen. Code 1911, art. 593, for giving or delivering intoxicating liquors to a minor without the written consent of his parents or guardian, an acquittal on the charge of making a sale to such minor was not sufficient as a plea of former jeopardy, since the offenses were entirely separate and distinct, requiring different proof to convict.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 386-403, 408, 409; Dec. Dig. § 202.]
    2. Criminal Law (§ 1091) — Appeal — Bill op Exceptions:
    A bill of exception to the refusal of a special charge, merely stating that defendant requested the charge set out, ajid stating its refusal, to which he excepted, without giving any reason why such charge should be given, does not present the question in such a way as to authorize a review.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.]
    Appeal from Sabine County Court; J. B. Lewis, Judge.
    Alex Dickerson was convicted of giving or delivering intoxicating liquors to a minor without the written consent of his parents or guardian, and he appeals.
    E. P. Padgett, of Hemphill, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, J.

Under article 593, Pen. Code, the appellant was prosecuted and convicted for giving or delivering intoxicating liquors to a minor without the written consent of his parents or guardian, and his punishment fixed at a fine of $25, the lowest prescribed by law. •

The appellant claims, in various ways, former jeopardy. His pleas and bills and the record on this subject clearly show that at a previous day of the same term of the court at which this cause was tried, by proper complaint and information, he was then charged with violating the prohibition law in force in said county for making a sale of intoxicating liquors to Clinton McGown, and was tried and acquitted of that offense; that then he was prosecuted in this case for giving or delivering intoxicating liquors to Clinton McGown, a minor then under 21 years of age. The offenses are entirely separ-rate and distinct; one alleging a sale of intoxicating liquors in violation of the pro-Mbition law, the other, giving or delivering intoxicating liquors to a minor without the written consent of his parent, etc. It is true that the two offenses involved the same transaction. The law required additional and different proof to establish the latter from what it took to establish the former. Much additional proof from that in the first case was introduced in tlie second, and the record, as stated above, clearly and fully shows all this. None of the bills or complaints of appellant show any error on this account. The sole grounds of appellant’s motion for new trial or in arrest of judgment present the above question and no other.

No objection in any way is made to the charge of the court. Appellant has one bill of exceptions to the refusal of the court to give his special charge, which is quoted therein, but this is not made a ground of the motion for new trial, or in arrest of judgment. His bill as to this refused charge merely states that on the trial of the cause hie requested the following charge, then quotes it, and states that the court refused to give it, to which he excepted. No reason is given in the exception, charge, or elsewhere why such charge should be given. Clearly under all the decisions this does not present the question in a way that authorizes this court to review it. Ryan v. State, 64 Tex. Cr. R. 637, 142 S. W. 87S; Berg v. State, 64 Tex. Cr. R. 618, 142 S. W. 884; and many other cases unnecessary to cite.

The judgment is affirmed.


text:
    BOYETTE v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 17, 1913.
    Rehearing Denied Jan. 21, 1914.)
    1. Witnesses (§ 349*) — Impeachment.
    Questions asked a witness on cross-examination, in a prosecution for unlawfully carry.ing a pistol, if the witness had not some 20 or 30 years ago been engaged in selling intoxicants, and had not also run a tenpin alley, were properly excluded, on the ground that such acts were too remote to affect the witness’s credit.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1135-1139; Dec. Dig. § 349.*]
    2. Criminal Law (§ 814*) — Prosecution — Construction — Applicability — Evidence.
    Where accused did not claim, in a prosecution for unlawfully carrying a pistol, that he was on his own premises at the time, and even denied having a pistol, it was not error to refuse a request to charge that accused had a right to carry a pistol on his own premises.
    [Ed. Note. — For other cases, see Criminal Law, Cent. .Dig. §§ 1821, 1833, 1839, 1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. § 814. *]
    Appeal from Smith County Court; Jesse F. Odom, Judge.
    Frank Boyette was convicted of unlawfully carrying a pistol, and appeals.
    Webster Jarvis, of Tyler, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of unlawfully carrying a pistol, and his punishment assessed at a fine of $100.

When the case was called for trial, appellant filed his second application for a continuance. As the application, in several respects, failed to meet the requirements of articles 60S and 609 of the Code of Criminal Procedure, the court committed no error in overruling the application.

While the prosecuting witness Jno. D. Scott was testifying, on cross-examination, appellant desired to elicit from him that some 20 or 30 years ago he had engaged in the sale of intoxicating liquors, and had also run a tenpin alley. As these acts of themselves do not constitute a crime, the court did not err in sustaining the objection to said testimony, on the ground that such acts are “too remote to affect the credit of the witness.”

Appellant requested the court to instruct the jury that he had a right to carry a pistol on his own premises. If the testimony called for such charge, of course it should have been given. Appellant does not in his testimony claim to have been on his own premises, and emphatically denies having any pistol on the occasion in question. The issue as made by appellant’s testimony, that it was a bicycle pump which state’s witnesses mistook for a pistol, was submitted by the court to the jury, and they find adversely to this contention. Ben Watts and Jno. D. Scott swear positively that appellant had a pistol and drew it on them, and told them, if they came a step further, he would shoot them. This transaction, if it did take place, did not take place on appellant’s premises, and, if the state’s testimony is true, appellant came off the streets of Tyler with a pistol on his person.

The judgment is affirmed.


text:
    HALLER v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 23, 1913.
    Rehearing Denied Jan. 21, 1914.)
    1. Arrest (§ 63) — Necessity of Warrant-Misdemeanors.
    Code Cr. Proc. 1911, art. 261, permits municipal authorities to establish rules authorizing the arrest without warrant of persons found in suspicious places, and under circumstances reasonably showing that they have been guilty of a felony or breach of the peace, or are about to commit some offense, and the ordinances of the city of Dallas permit policemen to make arrests without warrant in eases specified in the statute. Held, that a policeman could arrest without a warrant one having a reputation of being a common prostitute, who was found in bed with a man in a reputed house of ill fame.
    [Ed. Note. — For other cases, see Arrest. Cent. Dig. §§ 145-156; Dec. Dig. § 63.]
    2. Bribery (§ 10) — Admission of Evidence.
    In a prosecution for offering to bribe a policeman not to arrest a woman and man found together in bed in accused’s house, evidence of the general reputation of the woman was admissible.
    [Ed. Note. — For other cases, see Bribery, Cent. Dig. § 9; Dec. Dig. § 10.]

      3. Bribery (§ 10) — Admission of Evidence.
    In a prosecution for offering to bribe a policeman not to arrest a woman and man found in bed together in accused’s bouse, evidence that accused offered to pay money to first one, and a few minutes thereafter to another, policeman, in the presence of both, was admissible.
    [Ed. Note. — For other cases, see Bribery, Gent. Dig. § 9; Dec. Dig. § 10.]
    4. Bribery (§ 10) — Prosecution—Admission of Evidence.
    In a prosecution for offering to bribe a policeman to induce him not to arrest a man and woman found in bed together in accused’s house, evidence that accused’s house was reputed to be a house of ill fame was admissible in evidence as tending to show why accused would offer to pay money to the policeman.
    [Ed. Note. — For other cases, see Bribery, Gent. Dig. § 9; Dec. Dig. § 10.]
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    Cora Haller was convicted of offering to bribe a policeman, and appeals. Affirmed.
    See, also, 159 S. W. 1190.
    Ed B. Freeman, P. J. Hemphill, and A.
    5. Baskett, all of Dallas, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

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

   HARPER, J.

Appellant was convicted of offering to bribe W. B. Roddy, a policeman in the city of Dallas.

The evidence introduced by the state would show that appellant was running a rooming house in Dallas that had the reputation of being a bawdyhouse. That officers Roddy and Erwin entered this house at night, investigating. Mr. Roddy says: “We went in one room and found this man Eichelberger and the negro woman, Lovie Boyd, in the bed together. That white man was F. M. Eichel-berger, and the girl was named Lovie Boyd. We arrested them. My partner then went upstairs, and I remained in the room where Eichelberger and Lovie Boyd were. We arrested Lovie Boyd for vagrancy for being a prostitute and Eichelberger for vagrancy for associating with a prostitute. They were lying there in bed together and appeared to be asleep. She just had on a thin knit undershirt, and it was all pulled up under her arms, and he was naked, and he was lying kind of on her. I heard Cora talking to Mr. Erwin out in the hall when he came down from upstairs. I was in the room. All I heard her say to him was that she would give us $5 a week apiece as long as we stayed on the force. Mr. Erwin came in where we were, and she called me out in the hall. She told me she would give us $200 and $5 a week as long as we were on the force if we would permit Eichelberger and Lovie Boyd to remain at her house and would not take them away. I told her I could not do it, and she insisted. She had some bills in her hand; I don’t know how much, and said, ‘Here, take the money, take the money.’ About this time Eichelberger and Lovie had dressed, and we started out with them and got out on the front gallery. I told Cora to come on, and she said wait until she got her bonnet, and she went out the back door and left. I never saw her any more that night. We then took Eichel-berger and Lovie Boyd on down to the City Hall. I know the general reputation of Lovie Boyd in the community in which she lives for being a common prostitute, and that-is that she is a common prostitute. 1 know the general reputation of Cora Hal-ler’s house in that community as to whether or not it is a house of prostitution; that reputation is that it is a house of prostitution.” Mr. Erwin testified in substance the same thing.

Appellant earnestly insists that the arrest was not a legal arrest, and if she did offer the money, the arrest being illegal, she would be guilty of no offense. He presents the matter in various ways, and its is the main contention on this appeal. The record further discloses that this arrest was followed by a plea of guilty on the part of Lovie Boyd to being a common prostitute, but does not disclose whether "or not Eichel-berger was convicted of any offense. If Lovie Boyd was a common prostitute and bore that reputation, if the officers found her, as they say they did, plying her vocation we think this would authorize her arrest under chapter 1 of title 5. of the Code of Criminal Procedure, and especially is this true under article 261, which reads: “The municipal authorities of towns and cities may establish rules authorizing the arrest, without warrant, of persons found in suspicious places, and under circumstances which reasonably show that such persons have been guilty of some felony or breach of the peace, or threaten, or are about to commit some offense against the laws.” The record discloses the city of Dallas had enacted the following ordinance: “Art. 8. Warrants of arrest shall issue against all persons against whom complaints have been filed and shall be executed by the chief of police, his deputies or policemen. Arrests without warrant may be made by any police officer when offenses against the laws are committed in their presence or where persons are found in suspicious places, and under circumstances which reasonably show that such persons have been guilty of some felony or breach of the peace, or threaten or are about to commit some offense against the laws.” If the evidence in this case would not indicate that Lovie Boyd had been or was about to ply her vocation — that of being a common prostitute, which was a violation of the law, we fail to “read the signs correctly.” It being our holding that the arrest without warrant, under these circumstances, was a legal arrest, disposes of the main contention of appellant, and that the court did not err in refusing to give the special charges requested.

It was permissible, under the circumstances, to admit evidence of tlie general reputation of Lovie Boyd, and tlie court did not err in so holding.

It was also permissible to show that the offer was made to Erwin as well as to Rod-dy. It was in effect all one transaction, for the offer to pay them both was made to each, and in a few seconds of time; the offer and appeal being first made to one and then to the other in the presence of each of them.

The reputation of the house of appellant was admissible, and would tend to throw light on why she would be making such an offer to the policemen, if she did make it. If they accepted the offer, she would be immune from arrest for running' that character of house, as long as they were detailed to that portion of the city.

The evidence for the state amply supports the verdict, and the criticisms of the court’s charge are without merit.

The judgment is affirmed.

DAVIDSON, J, absent


text:
    BRICE v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 10, 1913.
    Rehearing Denied Jan. 21, 1914.)
    1. Criminal Raw (§§ 419, 420) — Hearsay.
    Testimony merely of what witnesses had heard as to the mental condition of defendant’s father is hearsay.
    [Ed. Note. — Eor other cases, see Criminal Law,.Cent. Dig. §§ 973-983; Dec. Dig. §§ 419,
    2. Criminal Law (§ 452) — Evidence—Opinion as to Insanity.
    Allowing one who never met defendant, except when he shot a person, to merely detail his acts and conduct, and refusing to allow him to give his opinion that defendant was then insane, is not error.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent.Dig. §§ 1053-1055; Dee.Dig. § 452.]
    3. Criminal Law (§ 452) — Opinion as to Sanity.
    One who has long been acquainted with defendant, and intimately associated with him in business transactions, may give an opinion as to his sanity.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1053-1055; Dee. Dig. § 452.]
    4. Criminal Law (§ 57) — Insanity as Defense — Use of Liquors.
    Temporary insanity, induced by recent use 'of liquor, declared by Pen. Code 1911, art. 41, to be no excuse for commission of crime, is no defense.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 65, 69, 70; Dec. Dig. § 57.]
    5. Criminal Law (§ 814) — Instructions — Applicability to Evidence.
    A charge as to a state of affairs contrary to what the evidence shows them to have been is not called for by the testimony.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839,1860, 1865, 1883, 1S90, 1924, 1979-1985, 1987; Dec. Dig. § 814.]
    6. Criminal Law (§ 956) — Motion for New Trial — Affidavit.
    A motion for new trial for misconduct of the jury should be sworn to or supported by affidavit.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2373-2391; Dee. Dig. § 956.]
    7. Criminal Law (§ 1092) — Appeal—Review —Record.
    That a bill of exceptions containing the evidence heard on motion for new trial may be considered on appeal, it must have been filed during the term.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2919; Dec. Dig. § 1092.]
    8. Criminal Law (§§ 1092, 1099) — Appeau— Bili.s of Exceptions and Statement of Facts.
    Bills of exceptions and statement of facts not filed in the trial court within the time prescribed by statute will not be considered on appeal, notwithstanding any agreement of attorneys or order of district judge; but, if the delay be through fault of the prosecuting officers, there will be a reversal.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834 — 2861, 2866-2880, 2919; Dee. Dig. §§ 1092, 1099.]
    Appeal from Criminal District Court, Dallas County; W. L. Crawford, Jr., Judge.
    G. W. Brice was convicted of murder in the second degree, and appeals.
    Affirmed.
    Adams & Pippin and Samuell & Adams, all of Dallas, for appellant. C. E. Lane, Asst. Átty. Gen., for the State.

      For other oases see same topic ana section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Inaexes

   HARPER, J.

On a trial for murder, appellant was convicted of murder in the second degree, and his punishment assessed at 18 years in the penitentiary.

In the first two bills of exceptions filed appellant contends that the court erred in not permitting E. L. Stewart and E. R. Caldwell to testify that “they had heard that appellant’s father, before his death, became insane, that something was mentally wrong with him, and that he had hung himself.” The court, in approving the bills, states: “The witnesses testified that they knew nothing about the mental condition of defendant’s father, nor how he came to his death; that all they knew was simply hearsay rumor.” As thus qualified, the bills present no error. If such facts were true, the defendant, by depositions or otherwise, could have adduced the testimony on the trial by persons who knew the facts.

Bill No. 3, the court states, does not present the record correctly, and he refuses to approve the same. As the record is prepared and presented to this court, which is accepted and filed by appellant, the bill presents no error.

The defendant offered to prove by H. I. Sanders that, in his opinion, appellant was insane at the time he fired the shots. It is shown by the bills that the witness had never met appellant until the time of the tragedy, that witness and appellant were strangers to each other, and this was their first and only meeting. The witness was permitted to detail at length the acts and conduct of appellant, but was not permitted to express an opinion. Under such circumstances there was no error in the ruling of the court.

The appellant objected to some of the remarks of counsel in his opening address to the jury. The objection was sustained, and the court instructed the jury not to consider such remarks, and instructed appellant’s! counsel to prepare such charge on the matter as he desired. Counsel did so, and the court gave such charge to the jury. Under such circumstances the remarks were not of the character to present reversible error.

The court refused to approve appellant’s bill of exception No. 8, and in lieu thereof prepared and filed a bill, which was accepted and filed by appellant. The bill, as prepared by the court, shows Mr. Roark to have been acquainted with appellant for a long time, that he had been intimately associated with him in the transaction of business ; and under such circumstances, after detailing all these matters, the witness was properly permitted to testify as to his mental condition. Burt v. State, 38 Tex. Cr. R. 397, 40 S. W. 1000, 43 S. W. 344, 39 L. R. A. 305, 330, and cases cited in section 539 of Branch’s Crim. Law.

Appellant requested the court to charge the jury: “That, if you believe from the preponderance of the evidence that the defendant G-. W. Brice, at the time of the homicide, was rendered insane by the long-continued use of intoxicating liquors in conjunction with the recent use of such liquor, you will acquit the defendant.” This is not the law, and the court did not err in refusing to give the jury such instructions. Article 41 of the Penal Oode provides: “Neither intoxication nor temporary insanity of mind, produced by the voluntary recent use of ardent spirits, shall constitute any excuse in this state for the commission of crime. * * * ” If appellant was temporarily insane at the time of the commission of the offense, and such condition was induced by the recent use of intoxicants, this would be no defense to the crime. The rule of law stated in the cases cited by appellant — if one has become permanently insane by the long and continued use of intoxicants, he would not be subject to punishment — would not authorize the giving of the special charge requested by appellant, where he relies on the “recent use of such liquors” to prove temporary insanity. The court fully and fairly instructed the jury on insanity as presented by the testimony.

Special charge No. 2 was not called for by the testimony. If the evidence proves any one fact, it proves that “appellant was not recklessly discharging firearms without the intention to shoot any one,” but that he was shooting at Mrs. Lillian Arant, evidently with the intention to kill her.

Neither was special charge No. 5 called for by the testimony. The testimony does not establish the fact that defendant had ever been insane; but the issues as made were correctly presented by the court to the jury.

Special charges Nos. 3 and 4, as requested by appellant, were given.

On the issue of insanity, the court instructed the jury:

“No act done in a state of insanity can be punished as an offense. Every person charged with crime is presumed to be sane— that is, of sound memory and discretion— until the contrary is shown by proof. If, under the law as herein given you in charge, and the testimony of the witnesses, the guilt of the defendant has been established beyond a reasonable doubt, it devolves on the defendant to establish his insanity at the time of committing the act, in order to excuse himself from legal responsibility; that is to say, the burden of proof to establish his plea of insanity devolves upon the defendant. If the state has, as before explained, proved the facts which constitute the offense charged in the bill of indictment, your next inquiry will be: Has the defendant established by proof his plea of insanity, or has it been established by proof from any source? If it has, the law excuses him from criminal liability, and you should acquit him. The question of the insanity of the defendant has exclusive reference to the act with which he is charged, and the time of the commission of the same. If he was sane at the time of the commission of the crime, he is amenable to the law. As to his mental condition at the time, with reference to the crime charged, it is peculiarly a question of fact to be decided by you from all the evidence in the case, before the act, at the time, and after.
“A safe and reasonable test in all cases would be that, whenever it should appear from all the evidence that, at the time of doing the act, the defendant was not of sound mind, but was affected with insanity, and such affection was the efficient cause of the act, and that he would not have committed the act but for that affection, he ought to be acquitted. For in such a case the reason would be at the time dethroned, and the power to exercise judgment would be wanting. But this unsoundness of mind or affection of insanity must be of such a degree as to create an uncontrollable impulse to do the act charged, by overriding the reason and judgment, and obliterating the sense of right and wrong, depriving the accused of the power of choosing between right ad wrong as to the particular act done.
“Whether the insanity be general or partial, whether continuous or periodical, the degree of it must have been sufficiently great to have controlled the will of the accused, and to have taken from him the freedom of moral action, at the time of the commission of the act. Where reason ceases to have dominion over mind proven to be diseased, it then reaches the degree of insanity where criminal responsibility ceases, and accountability to the law, for the purpose of punishment, no longer exists.
“Whether degree of insanity existed in the defendant at the time of the alleged crime, is the important question on this issue. If it is true that the defendant shot at Lillian Arant and L. E. Jones, or shot at either or both of them, and took the life of the deceased, and at the time the mental and physical faculties were beyond the control of the defendant, or if some controlling mental or physical disease was in truth the acting power within him, which he could not resist, and he was impelled with intent, reason, or purpose, he would not be accountable to the law. If, on the other hand, his mind was sufficiently sound to be capable of reasoning and knowing.the act he was committing to be unlawful and wrong, and knowing the consequences of the act, and had the mental power to resist and refrain from its commission, his plea of insanity would not avail him as a defense.
“It is an essential ingredient of murder that the person, to be guilty of that crime, must be one of ‘sound mind and discretion;’ the meaning of which is that he must have capacity and reason sufficient to enable him to distinguish between right and wrong as to the particular act he is then doing. Although a man may be laboring under partial insanity, if he still understands the nature and character of his act, and its consequence, if he has a knowledge that it is wrong and criminal, and mind sufficient to apply that knowledge to his own case, and to know that, if he does the act, he will do wrong, and receive punishment, such partial insanity is not sufficient to exempt him from responsibility for his criminal act. But, if the mind was in a diseased and unsound state, to such a degree that for the time being it overwhelms the reason, conscience, and judgment, and the defendant, in committing the crime, acted from an irresistible and uncontrollable impulse, then it would be the act of the body, without the concurrence of the mind. In such case there would be wanting the necessary ingredient of every crime, the intent and purpose to commit it.
“It is not necessary that the insanity of the defendant should be established beyond a reasonable doubt; it is sufficient if it be established to your satisfaction by the weight or preponderance of evidence, that is, such and so much proof as reasonab’ly satisfies you of the existence of insanity at the time the act was committed. To ascertain the condition of the defendant’s mind at the time of the killing, you should look to its condition before that time; his conduct, acts, and all other surroundings. Ascertain, if possible, whether his mental condition was such as to enable him to know he was doing a wrongful and unlawful act. Look to his acts, conduct, and movements before and' on the occasion of the crime, and all other facts in the case, to reach a correct conclusion as to whether the defendant was of sound mind or not.
“In case the jury find from the evidence that the defendant committed the act with which he is charged, but at the time of the commission of the act he was in a condition of mental insanity, as above defined, you will say by your verdict: ‘We, the jury, acquit the defendant on the ground of insanity.’
“If you find and believe from the evidence that the defendant was afflicted with any disease, and that such disease, taken in conjunction with the long-continued use of ardent spirits by the defendant, if any, or in conjunction with the recent use of ardent spirits by the defendant, if any, produce a degree of temporary insanity on the part of the defendant such as would render the defendant insane, as insanity has hereinbefore been defined to you, and that such insanity, if any, existed at the time of the homicide, if any, you will find the defendant not guilty on the ground of insanity.”

This presented the issues made by the testimony more favorably than appellant had a right to expect, and such charge is not subject to any criticism in appellant’s motion for a new trial.

The only other ground in the motion that need be discussed relates to the misconduct of the jury, and that one of the jurymen several years before had been adjudged insane. The motion for a new trial is sworn to by no person, and is supported by the affidavit of no person. A motion that is not sworn to and is unsupported by any affidavit can raise no issue extrinsic the record, and these questions are not presented in a way that the court would be authorized to consider them. However, in acting on the motion for a new trial, the judgment of the trial court shows that he did hear evidence on these grounds in the motion, and he finds: “After hearing all the evidence upon said motion, the court finds that the jury in this case was guilty of no improper conduct, and that the jury did not discuss, allude to, or comment upon the failure of defendant to testify. The court also finds from said evidence that the verdict was arrived at and agrqed upon in a proper and legal manner, and that no extraneous matters entered in said verdict on the conclusion of the jury in arriving at said verdict. The court also finds from said evidence that the juror Hazelwood, mentioned in defendant’s said motion, was not insane while he was on said jury, and is not insane now. The court had said juror before him in person as a witness under oath on the hearing of said motion, and he was asked many questions, and his answers to same satisfied the court that he was discharged from the asylum several years ago, that he resided in Dallas county ever since, and is a landowner, and has carried on Ms business ever since with intelligence, that he has good memory, and possesses an average amount of intelligence; and the court finds that the verdict of the jury was based solely upon the law and the evidence uninfluenced by any other matter. Therefore each and- every ground of the defendant’s said motion and the motion as a whole is overruled by the court.”

The appellant, after the adjournment of the court for the term, presents and has filed a bill of exceptions containing the evidence heard at the time the motion for a new trial was acted upon. Under an unbroken line of decisions this court cannot consider such bill unless filed in term time. Probest v. State, 60 Tex. Cr. R. 608, 133 S. W. 263, and cases there cited. However, we have read this bill, and the evidence contained therein, and we are constrained to say that, if we could consider the evidence, we would not disturb the finding of the trial court thereon.

We have taken up and disposed of every bill of exceptions and ground in the motion for a new trial; but there is another matter we want to again call attention to, so that hereafter there will not be so many affidavits'and counter affidavits for us to consider in passing on whether or not we will consider the statement of facts and bills of exceptions in a case. The law contemplates and plainly says that a transcript in a criminal case shall be filed in this court within 90 days after the final judgment has been entered by the trial court. Articles 929, 930, 931, and 934, O. O. P. The record in this case shows that this case was tried March 25, 1913; that the order overruling the motion for a new trial was entered April 5, 1913; that the clerk made out the transcript within the time authorized by law, and forwarded same to tMs court, containing no bills of exceptions, nor any statement of facts. Three months thereafter appellant’s counsel presented to the clerk the bills of exceptions and statement of facts, and asked that they be filed as within the 90 days; but this the clerk correctly refused to do, and in his filing of the statement of facts he shows that they were not presented to him until October 4, 1913 — six months after the motion for a new trial had been overruled, and three months after the transcript had been filed in this court. In Bryant v. State, 35 Tex. Or. R. 394, 33 S. W. 978, 36 S. W. 79, Judge Hurt took up this question and discussed it at length, and held that the district judge had no power to order a statement of facts filed back, but it is the duty of the district clerk to file same as of date he received same, and, if not filed within the time fixed by law, it would not be considered by this court. And if the district judge has no such power and authority, certainly the prosecuting officer and the appellant’s counsel have no authority to agree that same may be done, and hereafter statements of facts and bills of exceptions must be filed within the time prescribed by law, and agreements of the parties in criminal eases, nor the order of the district judge, will be of no avail if the papers are not filed within the time prescribed by law for so doing. There has been much just complaint about the delay in the disposition of criminal cases, and, when the law is examined, it is not so much the fault of the law, but because of the fact that the law has been ignored. To this we cannot give our sanction, and parties are notified that the clerks will be required to forward the transcripts to this court within the time prescribed by law, and, if the bills of exceptions and statement of facts have not been filed within the time fixed by law, they will not be considered. If it is the fault of appellant or his counsel, they must suffer the consequences, and, if it is shown to be the fault of the prosecuting officers, the case will be reversed, because the appellant has been deprived of a statement of facts. We cannot and will not sanction a total disregard of the law merely to suit some persons’ convenience.

Affirmed.


text:
    BEATY v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 3, 1913.
    On Motion for Rehearing, Jan. 28, 1914.)
    1.Intoxicating Liqtjobs (§ 221) — Indictment — Negativing Exceptions.
    An indictment for pursuing the occupation of selling intoxicating liquors in prohibition territory need not negative the fact that the alleged sales wore permitted by law.
    [Ed. Note. — For other cases, see Intoxicating Liquors, 221.] Cent. Dig. §§ 240-248; Dee. Dig.
    2. Intoxicating Liqtjobs (§ 212) — Prosecution — Sufficiency oe Indictment.
    In a prosecution for pursuing the occupation of selling intoxicating liquors in prohibition territory, an indictment charging at least two sales within three years from the date of the indictment was sufficient.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 252; Dec. Dig. § 212.]
    3. Intoxicating Liqtjobs (§ 148) — Local Option Territory — Effect op Subsequent Law.
    The law making it an offense to pursue the occupation of selling intoxicating liquors in prohibition territory applies to territory that had at a previous election adopted local option.
    [Ed. Note. — For other eases, see Intoxicating Liquors, Dec. Dig. § 148.]
    4. Criminal Law (§ 598) — Trlal—Continuance — Diligence.
    Defendant waived the two days allowed by law for preparation of pleas, and consented to a trial two days thereafter, and, though informed that, if he desired to summon witnesses, the district attorney would have them summoned, stated that he would summon no out of county witnesses, and, when informed by the court that the witnesses he desired would be summoned at once, made no application therefor. Held, that an application for continuance on the ground of absence of out of county witnesses was properly denied for want of diligence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1335-1341; Dec. Dig. § 598.]
    Appeal from District Court, San Saba County; Clarence Martin, Judge.
    Bruce Beaty was convicted of selling intoxicating liquors in prohibition territory, and he appeals.
    Affirmed.
    Faver & Allison, of San Saba, for appellant. C. B. Lane, Asst. Atty. Gen., for the State.

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

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

   HARPER, J.

Appellant was prosecuted for the offense of pursuing the occupation of selling intoxicating liquors in prohibition territory, and his punishment assessed at two years’ confinement in the state penitentiary.

Appellant filed a motion to quash the indictment on the ground that “it does not negative the fact that the alleged sales were permitted by law.” This question was thoroughly discussed in the case of Slack v. State, 61 Tex. Cr. R. 372, 136 S. W. 1073, Ann. Cas. 1913B, 112, and cases there cited. We deem it unnecessary to do so again. The ruling in that case has been uniformly followed, and we see no reason to change our opinion.

After verdict, appellant filed a motion in arrest of judgment, alleging that the indictment charged a single violation of the local option law, and did not charge appellant with pursuing the business and occupation, and, if it did charge that appellant was pursuing the business or occupation, then such offense was not in force in San Saba county, as the election in that county was held prior to the enactment of the statute making it an offense to pursue the occupation. The form of indictment in this case was specifically approved by this court in Mizell v. State, 59 Tex. Cr. R. 226, 128 S. W. 125, and has been sustained in a number of decisions since then, and it does charge the pursuing of an occupation. And the question whether the law was in force in San Saba county underwent a thorough discussion in Fitch v. State, 58 Tex. Cr. R. 366, 127 S. W. 1040, and that opinion has been adhered to; and in the opinions just cited will be found discussed all the questions raised by appellant as to the sufficiency of the indictment, and we respectfully refer to them, and hold that the court did not err in overruling the motion to quash, and in arrest of judgment.

By bill of exceptions No. 2, it is made to appear: That the indictment was returned into court on the morning of April 19th. That appellant was arrested and brought into court by 9 o’clock in the morning. That the attorneys who represented him on this trial were then retained, and, after consulting with their client, it was agreed in open court that the two days allowed by law for preparation of pleas would be waived, and the case set for trial on Monday, April 21st, and this was done. That the court and district attorney then informed counsel and his attorneys that, if they desired to summon any witnesses,' if they would make application, the district attorney, in consideration of their waiving the two days, would telephone the proper officers in whatever county the witnesses might reside and have them summoned at once. That at noon Saturday one of appellant’s counsel informed the district attorney that they would invoke the suspended sentence law, but they would summon no out of county witnesses. Monday morning when the case was called, as per agreement of counsel, appellant then filed a motion to continue, stating that he desired seven witnesses who resided in Mills county; that he would enter a plea that, if found guilty, his sentence might be suspended; that he had had no process issued for the witnesses, as he had not had time to get out the process, and the witnesses, if present, would testify that appellant had never prior to this time been convicted of a felony, and had always borne a good reputation. The court states that, when this application for a continuance was filed, he, in open court, notified appellant and his counsel that, notwithstanding the agreement to set the case for the 21st, he would not call the case until the following day, so that they might have the entire two days allowed by law, if they so desired, but that the time was again waived, and all agreed that the case might be called for trial at the time it was tried. The court further states, in approving the bill: “The court informed defendant and counsel that any process desired for witnesses would be wired out at once; but none was applied for, and none of the witnesses applied for, until the case was called for trial. Had process been applied for when the court so notified defendant and his counsel, the witnesses could easily have been procured, if at their respective places of residence as named.” Appellant accepts the bill with all these recitations, and does not contest that the facts are correctly stated. It is further shown by the bill that the mail left San Saba on the 19th of April at 3 p. m., and, if process had been sent on that mail, it would have reached the sheriff of Mills county on the 19th, and the witnesses could have been summoned- and their attendance secured by the 21st. After agreeing on the morning of the 19th that the ease could be set for the 21st, if the attendance of these witnesses had been desired, to exercise diligence the process should have been gotten out, and sent on the mail that left at 3 o’clock that evening; but this was not done, and on Monday, the 21st, when the court stated to them that the ease would not be called until the next day, if they so desired, they say nothing about the witnesses, but again waive time, and, when the case is called, a motion for continuance is filed to secure witnesses for whom no process has ever been issued. Under such circumstances there was no error in overruling the application to continue the case. If any. diligence had been shown, as appellant filed a motion to suspend the sentence, witnesses to prove good character would be material to an issue in the case; but, as the bill shows a total lack of diligence, and a refusal of all assistance by the court and the district attorney to secure the witnesses, and it further appearing that no process has ever been issued for the witnesses, we will not reverse the case.

The evidence amply supports the verdict, and the court submits all the issues made by the testimony in language frequently approved by this court.

Affirmed.

On Motion for Rehearing.

A motion for rehearing has been filed in this cause, and appellant earnestly insists that the court misconstrued the qualification of the trial judge. The qualification reads as follows: “Examined, approved, and signed by me, and ordered to be filed as a part of the record in this cause, this the 19th day of May, 1913, with explanation that the court had defendant and his counsel appear in open court, and informed them that the case would not be called for trial until the following day, if they so desired; but the time was waived, and they all agreed in open court that the case be called for trial on the day it was tried. The court then informed defendant and counsel that any process desired for witnesses' would be wired out at once; but none was applied for, and none of the witnesses applied for, until two days following when the case was called for trial. Had process been applied for when the court so notified defendant and counsel, the witnesses could have easily been procured, if at their respective places of residence.”

Furthermore, the district attorney filed the following contest, duly sworn to: “Now, comes the district attorney and, replying to the application of defendant for continuance, says the diligence used by defendant to procure the attendance of the witnesses named in said application is not sufficient in this: On Saturday, April 19, 1913, about 9 o’clock a. m., the indictment in this cause was returned, defendant arrested, and counsel retained, who were informed by the district attorney and the court that any process they desired issued would be promptly issued, and the district attorney informed counsel that he would phone the proper officer in whatever county the witnesses might reside to summon them at once to appear upon said trial. Counsel and defendant agreed with the district attorney to waive the two days after return of indictment, and agreed that said trial would be set for Monday, April 21, 1913.

After the noon hour on April 19, 1913, the district attorney had a consultation with P. M. Faver, one of counsel for defendant, in which said counsel informed the' district attorney that the defendant would invoke the suspended sentence law, and claimed that defendant had previously enjoyed a good reputation, but further told said district attorney he would not summons any out of county witnesses.”

Under such circumstances we do not think the court erred in refusing to continue the ease for witnesses who had never been even applied for, as shown by the record, prior to the time the motion to continue was filed, and in fact were never issued for.

The motion for rehearing is overruled.


text:
    LAMB-CAMPBELL v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 3, 1913.
    On Motion for Rehearing, Jan. 28, 1914.)
    1. Forgery (§ 29) — Indictment—Extrinsic Facts.
    An indictment for making k false instrument, purporting to be a receipt by the treasurer of a life insurance company for a premium on a policy, need not allege whether or not the company is a corporation.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 77-81; Dec.. Dig. § 29.]
    2. Forgery (§ 29) — Indictment—Extrinsic Facts — Authority oe Apparent Maker. ■
    An indictment for making a false instrument purporting to be a receipt by the treasurer of a life insurance company for a premium on a policy need not allege that the treasurer had authority to issue such receipts, as the duty to do so necessarily follows the holding of the office of treasurer.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 77-81; Dec. Dig. § 29.]
    On Motion for Rehearing.
    3. Forgery (§ 29) — Indictment—Extrinsic Facts — Capability oe Instrument to Defraud.
    An indictment for making a false instrument purporting to be a receipt by the treasurer of a life insurance company for a premium on a policy was not defective because of the omission of extrinsic averments showing how and in what manner it might become possessed of capacity to defraud, sinqe the instrument, if true on its face, would create a legal obligation on the part of the treasurer to pay the company the sum, the receipt of which was therein acknowledged.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 77-81; Dec. Dig. § 29.]
    Appeal from District Court, Galveston County; Robt. G. Street, Acting Judge.
    W. A. Lamb-Campbell was convicted of forgery, and he appeals.
    Affirmed.
    W. F. Kelly, of Galveston, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted of forgery.

The record contains neither a statement of facts, nor any bills of exception, but a motion in arrest of judgment was filed, vigorously attacking the indictment, and an able brief bas been filed, presenting this ground alone for review. Omitting tbe formal parts, tbe indictment reads:

That appellant “without lawful authority and with intent to injure and defraud, did willfully and fraudulently mate a false instrument in writing purporting to be tbe act of another, to wit, tbe act of H. W. St. John, treasurer of tbe ¿Etna Life Insurance Company, of Hartford, Conn., which false instrument is to tbe tenor following:

“ ‘The ¿Etna Life Insurance Company of Hartford, Connecticut, Office.
“ ‘$1180 January 21, 1913.
“ ‘Received from John Johnston, Agent, tbe sum of eleven hundred & eighty dollars being one annual premium, on policy No. 1,570,-851 for Rev. W. A. Lamb-Campbell, Ins’d.
“ ‘Next premium due January 21, 1914.
“ ‘H. W. St. John, Treasurer & C.’
“Said instrument in writing containing impressed upon it the purported seal of the ¿Etna Life Insurance Company, of tenor following:
“ ‘¿Etna Life Insurance Co. H. C.’
—against the peace and dignity of the state.”

The contention is that this receipt is not such an instrument upon which forgery can be based, without extrinsic averments; that there is no allegation showing whether the RStna Life Insurance Company is a company, corporation, or individual; that there is no averment showing the connection of H. W. St. John with the Life Insurance Company; or that he had authority to execute such an instrument. It was not necessary to allege whether or not the Life Insurance Company was a corporation. Reeseman v. State, 59 Tex. Cr. R. 430, 128 S. W. 1127; Webb v. State, 39 Tex. Cr. R. 534, 47 S. W. 356; Usher v. State, 47 Tex. Cr. R. 93, 81 S. W. 309, and other cases cited in Branch’s Criminal Law, § 379. The indictment does allege that H. W. St. John was treasurer of the ¿Etna Life Insurance Company in specific terms, and it was not necessary to allege that he had authority to issue receipts for money paid. This duty necessarily follows the holding of the office of treasurer, and when the treasurer’s name is signed to a receipt there arises a legal obligation on him to have the money forthcoming when demanded by the corporation. If this instrument was a genuine valid instrument, it would create a liability on the part of Mr. vSt. John to his principal, and under such circumstances we think it the subject of forgery without further allegations than are contained in the indictment. The court did not err in overruling the motion in arrest of judgment

The judgment is affirmed.

On Motion for Rehearing.

Appellant in his motion for a rehearing earnestly insists that while the instrument in this ease under proper averments would be the subject of forgery, yet that it is “an ordinary receipt,” as he terms it, there must be extrinsic averments showing how and in what manner it might become possessed of capacity to defraud, outside of the receipt itself. This is only true in those instances where the instrument does not on its face show that it would create a pecuniary obligation. In this case, the instrument, if true, on its face would create a legal obligation on H. W. St. John to pay the ¿Etna Life Insurance Company the sum of $1,180. Suit could be instituted on it, and, if shown to be true, on it and it alone the company could recover judgment against Mr. St. John, and under such circumstances no other aver-ments than those contained in the indictment were necessary. If he received the money as treasurer of the company named as an annual premium on policy issued to appellant, he would be liable to the company for the money. Eonville v. State, 17 Tex. App. 368. The cases cited by appellant state no other or different rule, as they were rendered in cases where the liability did not appear as a matter of law on the face of the instrument, but if any of them should seemingly do so, then on that point they are overruled.

The motion for rehearing is overruled.


text:
    COLE v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 23, 1913.
    Rehearing Denied Jan. 21, 1914.)
    1. Intoxicating Liquors (§ 238) — Prosecution — Jury Question.
    In a prosecution for engaging in the business of selling intoxicating liquor in prohibition territory, evidence helé sufficient to go to the jury.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 324-330; Dec. Dig. § 238.]
    2. Criminal Law (§ 598) — Continuance-Absence of Witnesses — Diligence.
    Accused is not entitled to continuance on the ground of absence of witnesses where he did not exercise any diligence to procure their attendance; it appearing that one of the absent witnesses was within two blocks of the courthouse, and no attachment was issued against him.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1335-1341; Dee. Dig. § 598.]
    3. Criminal Law (§ 1166½)— Appeal — Harmless Error.
    Where accused challenged a juror, as did also the state, and he did not serve, though qualified, and the bill of exceptions did not show that any objectionable juror served, there was no error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3114-3123; Dec. Dig. § 1166y3.]
    4. Witnesses (§ 330) — Impeachment—Evidence — Admissibility.
    In a prosecution for engaging in the business of selling intoxicating liquor, it was not error to exclude accused’s question as to whether the state’s witness had bought whisky from any other person than accused for purposes of impeachment; the matter being immaterial.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1106-1108; Dee. Dig. § 330.]
    5. CRIMINAL Law (§ 369) — Evidence—Other Offenses.
    In a prosecution for engaging in the business of selling intoxicating liquor in prohibition territory, evidence of other sales about the time laid in the indictment is admissible.
    ■ [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 822-824; Dec. Dig. § 369. ] ’
    6. Criminal Law (§ 829) — Trial—Instructions. • • .
    The refusal of requested charges covered by the charges given is not error. .
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.]
    Appeal from District Court, Lamar County ; Ben H. Denton, Judge.
    Jim Cole was convicted of pursuing the business or occupation of selling intoxicating liquors in prohibition territory, and he appeals.
    Affirmed.
    Birmingham & Calvin, of Paris, for appellant. R. T. Lipscomb, Dist. Atty., of Bon-ham, and C. E. Lane, Asst. Atty. Gen., for the State.

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

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

   PRENDERGAST, P. J.

Appellant appeals from a conviction, with the lowest punishment fixed, for pursuing the business or occupation of selling intoxicating liquors in prohibition territory.

[í] The indictment charged that he pursued the business and occupation on or about March 28, 1913, after prohibition was properly put in effect, and on or about that date made three separate and distinct sales of intoxicating liquor to A. Wlare, and on or about the same- date made another distinct sale to Jamés Jessee, and on or about February 26, 1913, made another sale to C. E. Wales.

Ware testified positively and circumstantially to the three alleged sales to him. Wales testified to many sales of intoxicating liquors by appellant to him, some in March, 1913, and for the period of 10 or 11 months before the time alleged appellant pursued said business or occupation, that he had bought whisky from him from 4 or 5 to a dozen times a week ■ — not every week, but sometimes a dozen times or more in a week — and that he bought whisky from appellant by the drink and by the bottle many times in October, 1911, and afterwards. Bennett testified that he. had bought whisky from appellant on December 23 and 24, 1912, several times, and that from December 24,1912, back 6, or 8, or 10 months he had bought whisky from him as high as 15 or 20 times. Crowley testified that he bought whisky from appellant in June, 1912, and again in June and July, 1912. Jessee testified to a state of facts that would show that he bought whisky from appellant in March, 1913. • -

Appellant denied all of these sales, and testified that he had never sold to these or any other parties any intoxicating liquor. Some of the state’s witnesses were impeached, and there was also some supporting and corroborating testimony of them. These matters were all for the jury. The evidence, without question, was amply sufficient to sustain the conviction.

The state makes some contest of the filing of the statement of facts; but the view we take of the ease makes it unnecessary to discuss or pass upon that question. We have considered the statement of facts.

Appellant made a motion for a continuance on account of the absence of four witnesses. The bill and record show- that one of these testified; that the testimony of two others was inadmissible and wholly irrelevant. Besides, one of these was within two blo.cks of the courthouse, and no' attachment was issued for him. The trial began on May 19th, and was not concluded until May 21, 1913. The bill and record clearly show no diligence whatever to procure the attendance of these witnesses, and the ovferruling of the motion presents no errpr.

Appellant challenged one juror, claiming he was disqualified. The bill, as allowed by the court, not only shows that this juror was qualified, but that he was challenged both by the state and appellant. lie not only did not serve, but the bill does not show that any other objectionable juror did serve, and presents no error:''

By another bill appellant complains he was not permitted to ask the state’s witness Wales whether he had bought any whisky from any other person than defendant, expecting the witness to testify that he had, and intended to show by such other person that no such sale had been made, in order to affect the credibility of said witness. The bill shows that it was not permissible to ask this witness any such question for the purpose of impeaching him. A witness cannot be impeached on immaterial matter not admissible.

Testimony by witnessés to purchases of intoxicating liquors from appellant about, and shortly before, the' alleged offense was admissible without the indictment charging sales to such persons. This has been held uniformly by this court.

By a very meager bill, the materiality of which is not made by the bill, and from which we cannot understand the point attempted to be made, appellant complains that the court, permitted the state to introduce the attachment bond for the witness Willis in a former case against appellant. The bill -is wholly insufficient to authorize this court to review it; but, as presented and qualified by the court, it presents no error.

Appellant has one bill to the refusal of the court to give a special charge he requested. It is entirely too general, and not presented in such a way as to authorize this court to review it. Byrd v. State, 151 S. W. 1068. However, the point attempted to be raised by the special charge was fully and substantially covered by the court’s charge.

The court gave a full, fair, and complete charge under the law, and such charge as has many times been approved by this court. By it, the jury were required to believe, beyond a reasonable doubt, that appellant, about the time charged in the indictment, and prior to its filing, unlawfully engaged in and pursued the business of selling intoxicating liquors in prohibition territory; and, further, that he did make the three different sales of intoxicating liquors to A. Ware, as alleged, and one to lessee, as alleged, and another to Wales, as alleged, before they could find him guilty, and required that, unless they so found, to acquit him.

The court also defined what is meant by pursuing the occupation or engaging in the business of selling intoxicating liquors, in effect, as has uniformly been approved by this court, and none of appellant’s complaints thereto are well founded.

No error is shown in the trial of this cause. The judgment is affirmed.

DAVIDSON, J., absent.


text:
    PERRETT v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 10, 1913.
    Rehearing Denied Jan. 21, 1914.)
    L. Witnesses (§ 393) — Impeachment—Contradictory Statement.
    A witness may be impeached by her statements before the grand jury, contradictory of her testimony at the trial.
    [Ed. Note. — Por other cases, see Witnesses, Cent. Dig. §§ 1252-1257; Dec. Dig. § 393.]
    2. Criminal Law (§ 518) — Confessions—• Warning.
    A confession made by one in jail without the warning to him required by statute, not being a continuation of one made several days before on warning, but being an entirely different statement, containing many additional matters, is inadmissible.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 1157-1162; Dec. Dig. § 518.]
    Appeal from District Court, Tarrant County; James W. S wayne, Judge.
    G. W. Perrett was convicted of rapé, and appeals.
    Reversed and remanded.
    Poulter & Johnson, of Pt. Worth, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted for rape on his own daughter, and his punishment assessed at 50 years’ confinement in the penitentiary.

Appellant objected to Joe McKinney, a boy seven years old, being permitted to testify.

We have carefully read the voir dire examination of this boy, and are of the opinion, the court did not err in permitting him to testify.

Neither was there error in permitting the witness Grace Perrett to be impeached by the testimony she gave before the grand jury. When this witness had testified in behalf of appellant to an entirely different state of facts to what she stated when before the-grand jury, the state, as affecting her credit as a witness, was properly permitted to show ■ what she had testified on the former occasion.

However, the first bill of exceptions presents an error that will necessitate a reversal of the case. It appears that appellant appeared before the assistant county attorney on January 28th, and after being warned, as the law requires, made a statement in which he admitted his guilt of the crime-charged. This statement was properly admitted in evidence. Three days later he-made another statement. This latter statement contains no warning of any character. In fact the assistant county attorney testifies that when this latter statement was made on January 31st he gave to appellant no warning, apparently relying on the warning he had theretofore given on January 28th. But this latter statement is not a continuation of the first, and is an entirely different statement, containing many additional matters, and matter of such an atrocious nature we can readily see why a jury who-heard it would inflict virtual life imprisonment in the penitentiary. And we can readily understand how a trial judge, considering, the nature of the case, and that appellant was mistreating his little daughter, should, feel that the jury should know all the facts. Vet he and this court are bound by the law as written by the Legislature. It is conceded that appellant was under arrest and in jail, and when he made the statement January 31st no warning was given, and the statement contains no allegation that any warning of any character was given at that time. If by any construction it could be held to be but a continuation of the statement January 28th, we would feel inclined to uphold the ruling of the trial judge in admitting it in evidence. But the language of the two statements, made at different times (three days apart), will bear no such construction. The first statement is shown to have been made in the presence of N. E. Cambell, J. M. Painter, and H. G. Musiclc, while when the latter was made, only Mr. Musick was present. The Legislature has provided that a statement of a defendant, while under arrest,. is not admissible against him, unless it be in writing, signed by him, and shall show that he was duly warned by the person to whom the confession was made that he did not have to make a statement, and that such statement could be used in evidence against bim. Tbis statute seems to provide that the written instrument in and of itself must show those facts, and tbis court bas so beld in Henzen v. State, 137 S. W. 1141, and in a number of cases since tbe rendition of that opinion.

Tbe record as presented to us contains no other error, but on account of admitting tbis unwarned statement, which was of a most damaging nature, tbe case is reversed and remanded.