author: HAWKINS, J.

text:
    BEENE v. WAPLES et al.
    (No. 2875.)
    (Supreme Court of Texas.
    June 24, 1916.)
    1. Elections <&wkey;122 — Nominations—Political Parties — Regulations.
    In the absence of constitutional or statutory restrictions upon their duties and powers, the duly existing authorities of a political party, such as state and county executive committees, in accordance with party usage, may make and enforce all reasonable regulations relating to nominations within such party, including reasonable assessments against any and all candidates for such nomination.
    [Ed. Note. — Eor other eases, see Elections, Cent. Dig. §§ 114, 114%, 116; Dee. Dig. &wkey;> 122.]
    2. Elections <&wkey;120 — Primaries — Statutes —Laws in Pari Materia.
    Acts 33d Leg. (Sp. Sess.) c. 39, § 34 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3174w), providing that at each primary held for nomination of candidate for United States Senator the election shall be conducted by the duly constituted election officers, “who shall be paid as provided by law for holding elections in other cases,” and the General Primary Election Law (Acts 29th Leg. [1st Ex. Sess.] c. 11) Bev. St. 1911, art. 3084 et seq., are to be construed together as one act, since both deal with the one general subject of party primaries, and are intended to constitute one general scheme of legislation thereon, especially in view of section 3 of the 1913 act providing that every law regulating primaries shall apply to election of United States senators.
    [Ed., Note. — For other cases, see Elections, Dec. Dig. &wkey;>120.]
    3. Elections <&wkey;126(3) — Pi&mary Election-United States Senator — Election Oefi-cers — Compensation.
    So construed, said section 34 means that election officers are to be paid out of funds provided by reasonable assessments against candidates for party nominations as provided by the general primary election law.
    [Ed. Note. — For other cases, see Elections, Dec. Dig. &wkey;>126(3).]
    4. Constitutional Law <&wkey;209, 251 — States >S=5ll9 — Taxation <®=>87, 38 — Diversion or Public Moneys — Equal Protection — Due Course or Law — Taxation by General Laws.
    So construed, said section 34 is not unconstitutional as violating Const, art. 1, §§ 3, 19, guaranteeing equal rights and due course of law, or article 3, § 52, as to use of public money for public purposes, or article 8, § 3, requiring taxation by general laws only.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 678, 726, 727, 732; Doc. Dig. <&wkey;209, 251; States, Cent. Dig. § 118; Dec. Dig. <§=»119; Taxation, Cent. Dig. §§ 64-67, 133; Dec. Dig. &wkey;37, 38.]
    57 Courts &wkey;»247(5) — Appellate Jurisdiction — Supreme Court — Certification of Substantive Law Question.
    Under the direct terms of Bev. St. 1911, art. 1522, as amended by Acts 33d Leg. c. 55 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1522), a question which is one of “substantive law” because not included within the classes of cases in the Courts of Civil Appeal in which the Supreme Court has jurisdiction, enumerated in the first five subdivisions of Bev. St. 1911, art. 1521, as amended by Acts 33d Leg. c. 55 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1521), can be presented to the Supreme Court only by writ of error, and cannot be carried to the Supreme Court by certificate from the Court of Civil Appeals.
    [Ed. Note. — For other cases, see Courts, Dec. Dig. &wkey;247(5).]
    Certified Questions from Court of Civil Appeals of Second Supreme Judicial District.
    Suit by Sam S. Beene against Paul Waples and others. On appeal by complainant to the Court of Civil Appeals from a judgment for defendants, questions were certified to the Supreme Court.
    Baskin, Dodge, Baskin & Eastus, of Ft. Worth, for appellant. Capps, Cantey, Hanger & Short, of Ft. Worth, for appellees Wa-ples and others. David Trammell, of Ft. Worth, for appellees Smith and others.
   HAWKINS, J.

Appellant seeks • to restrain, by injunction, the levy of an assessment to defray expenses of a second senatorial primary election under Acts of 1913, 1 S. S., c. 39, p. 101 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 3174a-3174z), known as the “Senatorial Primary Statute.”

The issues of law are presented here upon a certificate from the Court of Civil Appeals for the Second Supreme Judicial District which discloses the essential facts and the contentions of the parties, and states the questions, as follows;

“Appellant sued appellees in the district court of Tarrant county, Tex., aven-ing that appel-lees constituted, respectively, the chairman and members of the state Democratic executive committee, and the chairman and members of the Tarrant county Democratic executive committee; that appellant was a candidate for Democratic nomination for justice of the peace of precinct No. 1, place No. 1, of Tarrant county, Tex., at the ensuing July primaries; that the appellees composing the state Democratic executive committee had instructed the appel-lees who were members of the Tarrant county Democratic executive committee to assess against appellant and the other candidates for district, county, and precinct offices at said July primaries, a sufficient amount to defray the expenses of said July primaries, and as well also the expense of a second senatorial primary in Tarrant county, to be held on August 26th as provided by chapter 39, p. 101, General Laws of Texas, passed at the Special Session of the Thirty-Third Legislature; that no second primary had ever been held in Tarrant county, but that appellees composing the Tarrant county Democratic executive committee were intending to comply with the instructions of the state executive committee, and were threatening to assess appellant his pro rata part of the expense necessary to meet said second senatorial primary. Appellant further averred that said senatorial primary act was unconstitutional for various reasons, particularly: (a) That the same is contrary to article 1, section 3, of our state Constitution; (b) that said act is in violation of article 1, section 19 of our state Constitution ; and (c) that the same provides for the payment of the remuneration of the election officers out of the public funds in contravention of section 52 of article 3, and section 3 of article 8, of our state Constitution, section 34 of said act being likewise attacked on the ground last mentioned. Appellant further averred that by virtue of the provisions of said act he was prohibited under a penalty from contributing to the expense of said second senatorial primary, and that the state and county executive committees were also thereby prohibited from making any assessment against him for such purpose; that unless such contemplated assessment was paid by appellant the county executive committee would refuse to allow his name to he placed upon the ballot as a candidate for the oilice above mentioned. Appellant further averred that the action of the two committees in making an assessment for said second senatorial primary was premature, and therefore void, in that the time for calling said second senatorial primary had not arrived, and it was not known whether such primary would be necessary. Appellant’s petition contained further allegations of fact substantially as contained in the agreed statement of facts, hereinafter set forth, and he prayed for an injunction restraining the appellees, and each of them, from assessing or attempting to assess him any sum of money to be used directly or indirectly in defraying the expenses of said. second senatorial primary, and also prayed for general relief.
“Appellees demurred generally to the' sufficiency of appellant’s petition, specially demurring on the ground that it appeared from the allegations thereof that the sole purpose for which suit was brought was to restrain appel-lees from performing certain acts as members of the state and county Democratic executive committees, without prayer for other relief, and answered substantially that they composed, respectively, the ptate and Tarrant county Democratic executive committees; that said Democratic party, and said appellees as officials thereof, was a collection or association of individuals organized solely for.the purpose of furthering the principles of Democracy in the state of Texas; that all acts complained of were done and performed by them as officials of said party, in the management, control, and determination of the internal affairs, organization, and procedure of said Democratic party, within the scope of their duties as prescribed by the members of the Democratic party of this state; and appellees specially pleaded a want of jurisdiction in the district court to grant appellant’s prayer for relief and thus control the action of appellees in the respects complained of.
“Appellees further averred that they were informed and believe that said senatorial primary act was valid and constitutional, and provided the only way by which nominees for the office of United States Senator might legally be selected ; that said act imperatively requires a second primary in the event no candidate for the nomination for such office receives a majority of the votes cast at the senatorial primary to be held July 22, 1916; that it was imperatively necessary for the good of the Democratic party to properly select a candidate for United States Senator to be elected at the next ensuing general election; and that the acts of all appellees herein was in an endeavor to discharge the duties imposed upon them as officials of said Democratic party, without any intent or purpose to oppress or in any way discriminate, against any person whomsoever.
“It was further averred, and the agreed facts show, that there are eight candidates for the Democratic nomination for the office of Unitea States Senator from this state, required to be filled at the next ensuing general election, in November of this year, and in the opinion of appellees, as officials of said party as aforesaid, no one of said candidates will secure a majority of the ballots cast for nominees for said office at the general primary election in July of this year, and that such belief was the basis for the course adopted by the appellees.
“Appellees further aver, and the agreed facts also show, that at a meeting of said state executive committee held at Hillsboro, April 7, 1916, a resolution was passed recommending that primary elections be held for the nomination of all officers, including United States Senators, on July 22, 1916, and that, in event no candidate for United States Senator received a majority of the votes cast for all the candidates for such office, the chairman he directed to call a second senatorial primary, at which only the names of the two highest candidates for such office should be submitted ; that the several county executive committees be directed to assess the district, county, and precinct candidates, and collect from them the necessary funds to pay the expenses of both said primaries, etc., and a copy of such resolution, together with a letter asking thq co-operation of the Tarrant county executive committee, was mailed by the secretary of the state executive committee to appellee W. D. Smith, chairman of the Tarrant county executive committee.
“The agreed facts further show that the Tar-t rant county Democratic executive committee does not intend to hold a second primary for the selection of nominees for such county, district, and precinct places for which no candidate receives a majority vote at the general primary on July 22, 1916, but intends to comply with the resolution and request of said Democratic executive committee and assess all district, precinct, and county candidates pro rata for the expense necessary to hold said second senatorial primary, also assessing candidates for state offices the amount allowed by law; that the amount which would be assessed against candidates for the office for which appellant aspires, for the purpose of paying the expenses of the July primaries, would not be greater than $30; that an additional sum of $10 would be assessed against him as his pro rata part of the expenses for the second senatorial primary; but that said county Democratic executive committee would refund to appellant his pro rata part of the excess of the total amount realized from all the assessments, over and above the expenses of the general primary election to be held on July 22, 1916, in the event, for any reason, no second senatorial primary was held. It further appears from the agreed statement of facts that the emoluments of the office of justice of the peace, precinct No. 1, place No. 1, for the ensuing two years would probably amount to the sum of $3,000 per year, and that appellant had six opponents in his race for nomination for said office.
“The case was submitted to the trial court upon an agreed statement of facts substantially as. hereinabove set forth (and which by order of this court accompanies this certificate as a part hereof), who finally refused any relief whatsoever 1 to appellant, from which judgment this appeal was taken, appellant presenting in this court the questions hereinafter certified.
“In view of the gravity of the questions presented by this record, the importance of the issues involved, and of an early and final determination thereof, all parties have agreed and we deem it advisable to< certify unto your honors for decision the following questions, viz. :■
“(1) Is section 34 of said act above referred to (General Laws 1913, Special Session, c. 39, p. 101), unconstitutional?
“(2) If the preceding question be answered in the affirmative, are the remaining provisions of said law affected by the invalidity of said section 34, or is said senatorial primary act otherwise subject to the constitutional objections urged by appellant?
“(3) If section 34 should be held invalid, is ■ the contemplated action of the Tarrant county Democratic executive committee in assessing appellant for his pro rata part of the expense of holding such second senatorial primary, under the provisions of the act above referred to, for any reason illegal?
“(4) In view of the number of candidates for. the Democratic nomination for the office of United States Senator, and tlie probability of the necessity for the second senatorial primary, can the contemplated assessment against the appellant, if otherwise valid, be made at this time, under the stipulation to refund the excess as contained in the agreed statement of facts herein, in event such primary be not held, or is such assessment premature?”

Section 34 of said act of 1913 is as follows:

“Sec. 34. At each and every primary held for the nomination of a candidate for United States Senator, the election shall be conducted by the duly appointed and constituted election officers of the several polling places and voting precincts throughout the state who shall be paid as provided by law for holding elections in other cases.”

Said provisions of our state Constitution are as follows:

“All freemen, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public service.” Article 1, § 3.
“No citizen of this state shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by * * * due course of the law of the land.” Article 1, § 19.
“The Legislature shall have no power to authorize any county, city, town, or other political corporation, or subdivision of the state, to lend its credit or to grant public money or thing of value in aid of, or to, any individual, association or corporation whatsoever. * * * ” Article 3, § 52.
“Taxes shall be levied and collected by general laws and for public purposes only.” Article 8, § 3.

In the absence of constitutional or statutory restrictions upon their duties and powers, the duly existing authorities of a political party, such as state and county executive committees, in accordance with party usage, may make and enforce all reasonable regulations relating to nominations within such party, including reasonable assessments against any and all candidates for such nominations.

Our state Constitution seems silent upon that subject. The amount of the assessment involved is not alleged to be excessive, and it does not appear to be unreasonable. The complaint, and the certified questions, alike relate, solely, to the validity, operation, and effect of said statute, and, especially, of said section 34. Is that section of said statute unconstitutional? We think it is not.

Our state Legislature saw fit, in 1905, in the exercise of unquestionable powers, to regulate the making of party nominations for various state, district, county, and precinct offices, and, incidentally, to declare how the expenses thereof shall be defrayed. Acts 1905, 1 S. S., c. 11, p. 520; article 3084 et seq., R. S. 1911.

Likewise, in 1913, the Legislature undertook to regulate the making of party nominations for the office of United States Senator from Texas, and, incidentally, to prescribe how the expenses thereof shall be defrayed. Acts 1913, 1 S. S., e. 39, p. 101; Vernon’s Sayles’ Statutes, art. 3174a et seq.

Unlike said act of 1905 relating to primary elections generally, said act of 1913 does not set out, specifically, provisions for payment of primary election expenses contemplated by the act, but does declare, in general terms, and by unmistakable reference to pre-existing laws, how such expenses are to be defrayed.

Because those two statutes deal with the one general subject of party primaries for the making of party nominations, and are therefore essentially cognate, and because, obviously, the latter was intended to supplement the former, thereby completing one general scheme of legislation upon a particular subject, and because the latter statute presents strong and conclusive intrinsic evidence of a legislative purpose and intent, that, in so far as their phraseology will permit, the two statutes are to be treated, construed, applied, and enforced as one, we regard it as too plain for argument that accordingly, said two statutes should be read and construed together. Certainly they are statutes in pari materia, and in their interpretation the settled rules of statutory construction which are applicable in such instances should prevail. Conley v. Daughters of the Republic, 106 Tex. 80, 156 S. W. 197, 157 S. W. 937.

If section 34 should be construed as meaning that the election officers 'referred to therein (by which are meant, we think, the primary election officers provided for in said act of 1905) are to be paid, for their services, out of public funds, such provision for payment is, plainly, unconstitutional, as directing a misuse of public funds. Waples v. Marrast, 184 S. W. 180, recently decided by this court.

But if section 34 is to be construed and held to mean that such election officers are to be paid out of funds provided by reasonable assessments against candidates for party nominations, in all respects as set forth in and provided by said act of 1905 in its relation to the primary election officers referred to therein, there exists no conflict whatever between said section 34 and any other provision of that Constitution or of the Constitution of the United States, and in that event section 34 will stand as a valid expression of legislative will and authority.

We here adopt, as sound, said latter construction of said section 34, and affirm its constitutionality.

It will be noted that the above-quoted section 34 of the Senatorial Primary Law does not provide that the expense of holding senatorial primary elections shall be paid out of public funds. Instead of containing any such declaration, it says that that expense shall be paid “as provided by law for holding elections in other cases.” As provided by what law? This means necessarily, we think, the General Primary Law. The section (section 34), and the act of 1913, of which it is a part, do not deal with general elections. They deal with only primary elections for a particular purpose — the nomination of candidates for United States Senator. There could be no reasonable warrant, therefore, for looking to the General Election Raw as the law intended by the reference in said section 34 in its relation to the payment of expenses of senatorial primaries, since the General Election Law is not a law upon the same subject. As a matter of reason, if there be a general law upon the same general subject, that is the law to be looked to as, necessarily, the law which the Legislature, in framing section 34, intended shall govern the matter.

We have the General Primary Law with its distinct provision for the method of defraying the expenses of primary elections, and resort should, accordingly, be made to that law as the law on the subject intended by the reference in section 34. The provision of the General Primary Law (the act of 1905) is for the payment of such expenses, not out of public funds, but by assessment against state, district, county, and precinct candidates.

Our conclusion as to the true meaning of said act of 1913, and particularly as to the legal effect of section 34 thereof, is strengthened and confirmed by the unambiguous provisions of a preceding section thereof, as follows:

“Sec. 3. Every law regulating or in any manner governing elections or the holding of primaries in this state shall be held to apply to each and every election or nomination of a candidate for a United States Senator so long as they are not in conflict with the Constitution of the United States or of any law or statute enacted by the Congress of the United States regulating the election of United States Senators or the provisions of this act.”

Undoubtedly that adoption by reference includes all applicable provisions of said act of 1905 relating to payment of expenses of primary elections.

Therefore we answer said first certified question negatively, from which it follows that further answers to the second and third questions are unnecessary.

Because the fourth certified question is one of “substantive law,” merely, and is not embraced by any of the first five subdivisions of article 1521, R. S. 1911, as amended by Acts of 1913, c. 55, p. 107, it is not a proper question for certification, and, inasmuch as this cause is not before us upon an application for a writ of error under subdivision 6 of said amended article, this court is utterly destitute of present jurisdiction or authority over that issue of law. Wherefore we decline to answer said fourth question. Article 1522, R. S. Upon appeal the duty of passing upon such questions rests, primarily, upon the Court of Civil Appeals. This precise point was expressly so decided by this court in First State Bank of Archer City v. Power, 106 Tex. 210, 163 S. W. 581.
      ítesFor other eases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


source: Caselaw Access Project

license: Public Domain

text:
    COULTRESS v. CITY OF SAN ANTONIO et al.
    (No. 3516.)
    (Supreme Court of Texas.
    June 21, 1916.)
    1. Courts &wkey;o209(2) — Previous Conflicting! Decisions — Mandamus.
    Upon motion for rehearing in a suit for mandamus to require certification of decision, under Rev. St. art. 1623, by a Court of Civil Appeals upon the ground of conflict with the decision of another Court of Civil Appeals, the Supreme Court will not consider as a basis of conflict any decision not mentioned in the petition for mandamus.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 765; Dec. Dig. &wkey;3209(2).]
    2. Courts <&wkey;247(7) — Certification to Supreme. Court — Conflict.
    Under Rev. St. art. 1623, providing that where a Court of Civil Appeals arrives at a decision in conflict with the prior decision of another Court of Civil Appeals, it shall certify the question of law with the record to the Supreme Court for adjudication, mandamus to require certification on the ground of conflict cannot be based on conflict between decisions of the same court.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 752; Dec. Dig. &wkey;247(7).J
    3. Courts <&wkey;247(7) — Right to — Equities.
    In determining whether the Supreme Court shall require a certification of a decision by a Court of Civil Appeals, under Rev. St. art. 1623, on the ground that it conflicts with the decision of another court, equitable considerations, showing that petitioner has been denied some rights, cannot be considered.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 752; Dec. Dig. &wkey;247(7).]
    On rehearing. Denied, and former opinion affirmed.
    For former opinion, see 179 S. W. 515.
   HAWKINS, J.

In this action, for mandamus only, we are not called upon to decide, and have not undertaken to determine, and do not decide, whether any of the decisions of the several Courts of Civil Appeals in City of Houston v. Albers, 32 Tex. Civ. App. 70, 73 S. W. 1085, City of Paris v. Cabiness, 44 Tex. Civ. App. 587, 98 S. W. 925, and City of San Antonio v. Coultress, 169 S. W. 918, was correct. The real and only issue before us is, Does the decision in said Coultress Case conflict, upon any question of law, with either of said other decisions? And that defines the full extent of our jurisdiction in the premises.

Whether the petition in the last-mentioned case was substantially like the petition in both or either of the two other cases is not the controlling inquiry. In determining the issue involved we must consider the cases as a whole, including the city charters, the ordinances in issue, if any, and the facts, and not simply the petitions only. Upon consideration, accordingly, of relator’s motion and supplemental motion for a rehearing we find' no statutory conflict in the decisions mentioned, and- we adhere to our former views denying the writ.

Relator insists that the provisions of the Paris charter relating to the establishment of the police force (Special Laws of 1889, p. 112; 9 Gammel p. 1347) were to the same legal effect as the corresponding provisions of the San Antonio charter, and call our attention to section 24 of the Paris charter, which section seems not to have been quoted or mentioned by the Court of Civil Appeals in the Cabiness Case, or by us in our original opinion in this case.

Whether said provisions of said two charters are to the same legal effect, and whether the Paris charter required that the establishment of the police force should be “by ordinance,” are questions which, perhaps, are immaterial in this action; but we incline to the view that the Paris charter did not so require, and, in any event, we decline to hold herein that the decision of the decision of the Court of Civil Appeals at Dallas to that effect, in the Cabiness Case, was erroneous.

Whatever may be the proper construction of the applicable provisions of the Paris charter and of the San Antonio charter, respectively, the fact remains that the two Courts of Civil Appeals construed them differently, one holding that the San Antonio charter did, and the other that the Paris charter did not, require that the establishment of the police force should be by ordinance of the city; from which it is evident that the fundamental difference between those decisions was as to the legal effect of the charters, respectively, rather than as to the mere sufficiency of petitions.

Relator’s petition for mandamus does not specifically allege conflict in constructions placed upon similar charters, or conflict as to the sufficiency of similar city ordinances under similar charters, but does, in effect, allege conflict as to the sufficiency of what he alleges to be substantially similar petitions ; and the questions which we are asked to have certified were framed accordingly.

Moreover, in the San Antonio Case 'Coul-tress sought to have his appointment upheld by virtue of an ordinance which the Court of Civil Appeals held to be not in compliance with charter requirements; but the Cabiness Case, under the Paris charter, did not involve, on appeal, any issue or decision concerning the sufficiency ■ of any city ordinance, none creating a police force, or the office of policeman, having been enacted by the city council, so far as shown; and, likewise, the Albers Case, under the Houston charter, did not present, upon appeal, any issue or express decision as to the sufficiency of any city ordinance.

The supplemental motion avers that, whereas the Court of Civil Appeals in said Coultress Case held the city ordinance relied upon insufficient in that it did not definitely fix the number of policemen, that same court, “in several lengthy and carefully considered opinions held the same ordinance valid, and permitted the policemen to recover their money under identical circumstances with those of Coultress. See the following cases, to wit: City of San Antonio v. Serna, 45 Tex. Civ. App. 341, 99 S. W. 875; City of San Antonio v. Beck, 101 S. W. 263; City of San Antonio v. Tobin, 101 S. W. 269; City of San Antonio v. Bodeman, 163 S. W. 1043.”

Even though it should be assumed or found that said averment correctly reflects the effect of said four decisions, (a point upon which we express no opinion), still, for two reasons, neither of them can now be considered, in this action, as grounds of “conflict”:

1. They were not presented in relator’s petition for mandamus. Upon motion for rehearing in a suit for mandamus to require certification, under R. S. art. 1623, by a Court of Civil Appeals, upon the ground of conflict in decisions, this court will not consider, as a basis of such conflict, any decision not mentioned in the petition for mandamus.

2. Said four decisions are by the same Court of Civil Appeals which rendered said decision in the Coultress Case, and not by “some other Court of Civil Appeals.” Article 1623, R. S.; Smith v. Conner, 98 Tex. 434, 84 S. W. 815. Very candidly relator’s counsel concede that reversal by a Court of Civil Appeals of one or more of its own former decisions upon a question of law does not constitute “conflict” under our statute; but, in that connection, and for the sake of equity, we are asked to resolve in favor of relator any doubt which we may entertain as to the existence of statutory conflict charged by the petition for mandamus. We have no such doubt; and, as s'tated in our original opinion, the writ of mandamus issues, in such matters, only where the conflict is clear and the duty of the Court of Civil Appeals to certify the question of law involved is correspondingly plain.

Said supplemental motion avers, also, as part of relator’s plea for equity, that when his petition in said Coultress Ca.se was filed in the trial court, and, in addition to the ordinance which in that case was held insufficient, there existed certain city ordinances of dates December' 4, 1905, August 5, 1907, and September 3, 1912, fixing a definite number of policemen, which relator now indicates he would have pleaded had his ease been remanded by the Court of Civil Appeals to the trial court. Manifestly this new and extraneous matter cannot be considered by us herein for any purpose. Whatever difficulties or equities, if any, may inhere in the situation, we cannot deal with them in this action.

The motions are overruled.
      @us>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, J.

text:
    NEYLAND v. STATE.
    (No. 4079.)
    (Court of Criminal Appeals of Texas.
    May 17, 1916.
    Rehearing Denied June 14, 1916.)
    1. Homicide &wkey;>340(4) — Haemless Errur— INSTRUCTIONS INAPPLICABLE.
    On appeal from conviction of manslaughter, where accused received the lowest' penalty, error in charging on murder was harmless.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 720; Dec. Dig. <5&wkey;340(4).]
    2. I-Iomioide <&wkey;340(4) — Harmless Error.
    In such case, where no error in charging on manslaughter is pointed out which could have tended to bring about a conviction, other errors in the charge will not be considered.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. § 720; Dec. Dig. t&wkey;340(4).]
    3. Homicide i&wkey;300(7) — Instructions—Sele-Depense.
    In a murder trial, it is not error in the charge to submit affirmatively the state’s theory of the claim of self-defense, where the defendant’s theory of self-defense is also fully charged.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. § 622; Dee. Dig. &wkey;>300(7).]
    4. Homicide &wkey;> 188(2) — Evidence—Sele-Db-jtense — Prior Violent Acts op Deceased.
    In murder trial, it was not error to exclude evidence by the accused of the details of specific acts of violence previously committed by deceased on others than accused, where there was no evidence that defendant knew of these matters prior to the homicide; accused being permitted to testify at length to all he knew about deceased and his violent acts toward others.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 392; Dec. Dig. <&wkey;>188(2).]
    5. Criminal Law <&wkey;l 169(9) — Harmless Error-Opinion Evidence.
    In a murder trial, admission of opinion evidence as to manner of killing was not cause for reversal, where other testimony amply proved such manner.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3138; Dec. Dig. &wkey;1169(9)'.]
    6. Criminal Law <S&wkey;982 — Evidence—Admissibility — Suspension op Sentence.
    In a murder trial, testimony that accused had been residing in a house of prostitution was admissible as showing accused’s habits on the issue of suspended sentence asked by him; it having been proved that the keeper of the house was accused’s wife.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2500, 2501; Dec. Dig. &wkey;s 982.]
    7. Witnesses <&wkey;345(2) — Impeachment—Arrest por Vagrancy. '
    In a murder trial, it was not error to exclude proof, to impeach a witness, that he had Keen arrested for vagrancy the night before testifying, since vagrancy is a mere misdemean- or not imputing moral turpitude.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1126; Dec. Dig. &wkey;345(2).]
    8. Criminal Law i&wkey;1141(2) — Appeai^-Pre-sumption.
    On appeal the presumption is that the ruling of the trial court was correct.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3015, 3022; Dec. Dig. <&wkey;> 1141(2).]
    9. I-Iomioide <&wkey;171(l) — Evidence—Attendant Circumstances.
    In a murder trial, where the killing occurred in dispute between deceased and accused’s wife, ■ her acts and conduct in the transaction were admissible.
    [Ed. Note. — For other cases, see Homieide, Cent. Dig. §§ 351, 353, 358; Dec. Dig. &wkey;171 (1)J
    10. Criminal Law <&wkey;1170%(6) — Harmless Error — Evidence—Cure by Instructions.
    . In a murder trial, a question, on cross-examination of a witness, if.it was not true that accused was supported by prostitutes, it not appearing the question was answered, and the court instructing the jury that it could only be considered by them in passing on whether or not they would suspend accused’s sentence should that question arise, and could not be considered in passing on his guilt or innocence, did not injure defendant.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3134; Dec. Dig. <&wkey; 1170%(6).]
    Appeal from Criminal District Cfturt, Harris County; C. W. Robinson, Judge.
    T. L. Neyland was convicted of manslaughter, and appeals.
    Affirmed.
    Heidingsfelders, of Houston, for appellant. C. C. McDonald, Asst. Atty. u«n., John H. Crooker, Or. Dist. Atty., T. J. Harris, and E. T. Branch, all of Houston, for the State. *
   HARPER, J.

Under an indictment charging him with the murder of Tom Gardner by cutting and stabbing him with a knife and with some sharp instrument, the name and description of .which was unknown to the grand jury, appellant was convicted of manslaughter, and his punishment assessed at the minimum term of two years; and from the judgment thereon he has appealed, and his case has been so thoroughly digested, and the issues raised disposed of in the brief filed in behalf of the state by Messrs. C. C. McDonald, Assistant Attorney General, John H. Crooker, Criminal District Attorney,' T. J. Harris, and E. T. Branch, we have concluded to adopt it, in the main, as the opinion, omitting such parts as we do not deem necessary to a proper disposition of the case:

“1. Appellant admitted on the trial that he stabbed deceased, claiming that it was done with a spring-back knife in self-defense while ' deceased had him down and was choking him and trying to open a knife. The state’s testimony shows that deceased was stabbed to the heart with a dirk or sharp two-edged instrument while he was unarmed. According to the testimony for the state, appellant’s wife was running a public bawdyhouse in the restricted district of the city of Houston, known as the ‘reservation,’ and, when deceased entered the house with some companions, she sought to order them away, using very vile and vulgar language, and struck deceased, when appellant rushed out of a room there and attacked deceased, and in a short time deceased was stabbed fatally, dying in a few minutes. Appellant testified to an assault on his wife and himself; that deceased attempted to cut him with a knife, and he thought his life was in danger. The state’s case amply supports the verdict, and the conflict in the testimony was settled by the jury in favor of the state, and that finding was approved by the trial judge. We think it unnecessary to make a detailed statement of the testimony, since in briefing the contentions of appellant we call attention to whatever testimony we think bears on the point involved. From the description of the wound, and the other circumstances of the case, it is almost evident that deceased was stabbed to death with a dirk. This would sustain the allegations of the indictment as to the means, since in proving means only the substance of the issue need be proven. Chisom v. State, 179 S. W. 103.
“2. Appellant contends that the court erred in charging on murder; but it is unnecessary to determine whether or not the issue of murder was in the case, since appellant was convicted of manslaughter and received the lowest term for that grade of homicide, and any error in charging on murder or any errors in the charge on murder pass out of the case, since in no way did such error, if any, prejudice the other issues in the case. Dougherty v. State, 59 Tex. Cr. R. 464, 128 S. W. 398; Cukierski v. State, 68 Tex, Cr. R. 368, 153 S. W. 315; Condron v. State, 69 Tex. Cr. R. 513, 155 S. W. 253.
“3. Appellant also excepted to the court’s charge because it did not state as a matter of law that insults to a female relative would as a matter of law be adequate cause. An inspection of the charge shows that the court did so charge the jury, probably in response to such exception, and, as appellant was convicted of manslaughter with the minimum punishment assessed, any errors, if any, in charging on manslaughter, would pass out of the case, since there is no error pointed out which could have tended to bring about a conviction. Munos v. State, 58 Tex. Cr. R. 147, 124 S. W. 941.
“4. Appellant’s third exception to the court’s charge complains that the charge ‘too prominently calls the jury’s attention to the fact what the defendant’s rights were, and erroneously states the converse thereof, thereby calling the jury’s special attention to that feature of the charge which is set out in the last paragraph on self-defense.’ Any error of the court in too prominently stating what the rights of appellant were would be in his favor. The charge on self-defense was liberal to appellant, but of this he will not be heard to complain. As to the ‘converse’ of his rights, the court charged the jury: ‘If, however, you find from the evidence, after viewing the facts from the defendant’s standpoint at the time of the homicide, that it did not reasonably appear to defendant that he or his wife was in danger of losing his or her life nor of suffering serious bodily injury at the hands of deceased, then and there at the time he cut the deceased, if you find he did cut him, then if you should so find you will find against his plea of self-defense.’
“This charge is almost identical with the charge in the case of Logan v. State, 46 Tex. Cr. E. 574, SI S. W. 721, and the charge is not a ‘limitation’ on the theory of self-defense, but is simply submitting the state’s theory of self-defense. In section 1942 of Branch’s Annotated Penal Code, the proposition is laid down that the charge of the court may submit the state’s theory of the claim of self-defense, citing Humphries v. State, 25 Tex. App. 132, 7 S. W. 663; Garner v. State, 34 Tex. Cr. R. 356, 30 S. W. 782; Logan v. State, 46 Tex. Cr. R. 575, 81 S. W. 721; Howard v. State, 53 Tex. Cr. R. 382, 111 S. W. 1038; Arnwine v. State, 54 Tex. Cr. R. 216, 114 S. W. 797: Bordeaux v. State, 58 Tex. Cr. R. 71, 124 S. W. 646; Roberts v. State, 71 Tex. Cr. R. 77, 158 S. W. 1003.
“In Howard v. State, supra, the court uses the following language, which is again referred to and approved in Bordeaux v. State, supra: ‘Counsel for appellant sometimes overlook the fact that it is just as necessary and as much required of the court to submit to the jury issues raised by the state’s evidence, and on which, under the law, a conviction could be had and ought to be had, as it is to submit matters wholly defensive.’
“In the case at bar, appellant claimed that deceased was choking him and was trying to open a knife with his teeth when appellant stabbed him, while in fact no knife of deceased was found, and many witnesses testify that deceased had no knife. The court fully charged on appellant’s theory of self-defense and was authorized to submit the state’s theory thereof. The right of self-defense is founded on the law of nature, and is not, nor can be, superseded by any law of society. Instinct teaches it to wild beasts, custom to all nations, and reason to enlightened people. All self-defense rests upon necessity: when there is no necessity to kill, it cannot be self-defense. At common law one attacked was compelled to retreat to the wall before being entitled to defend himself, but our statutes do not require one assailed to retreat in order to avoid the necessity of killing his assailant. Our laws were made in the interest of brave and law-abiding citizens, and for the protection and cultivation of true manhood; but the right of self-defense was never intended to be used as a cloak for the assassin or as a shield for one who would use unnecessary violence or excessive force. When the assault or threatened injury to another does not amount to enough to create a reasonable apprehension or fear of death or serious bodily injury, then all means reasonably proper and effective should be first invoked before resorting to a right which, under the most favorable aspect of any case, must be deemed lamentable in its exercise. Our laws demand and require an affirmative presentation of any defensive theory, though it be impliedly included in the presentation of the state’s theory, and even though it is impossible to find in favor of the state’s theory without finding against the defensive testimony, and there is in reason and on principle no good nor just ground for complaint! that the state’s theory of a proposition is affirmatively given when in juxtaposition therewith and untrammeled thereby, the defensive theory is also affirmatively submitted.
“5. Appellant contends that the court erred in not charging on the theory that appellant had a right to eject deceased from the house of himself and wife, and that if in so doing he killed him he would not be guilty. The testimony raised no such issue. The court’s charge on self-defense covered fully every right appellant had in the premises, and the law knows no reasonable rules or regulations for the protection of a public bawdyhouse situated in the reservation and where prostitution is openly conducted in violation of law. What is said in Pierce v. State, 21 Tex. App. 540, 1 S. W. 463, where the same right was contended as to a gambling room, is applicable here. The court in no way limited appellant’s right of self-defense by referring to appellant’s being in such a house, and gave him the perfect right of self-defense on every possible phase of the case. There is a manifest difference between the sanctity of a home, and the purlieus of crime as evidenced by a public house of prostitution, where the general public is invited to visit.
“6. Bills of exception Nos. 1 to 6, inclusive, complain of the refusal of the court to give certain requested instructions. It is unnecessary to set them out. Some, if not all, are incorrect as a matter of law, since they authorize an acquittal on a state of facts which would not justify the homicide, and such as suggest any defensive theory are covered by the general charge, and what has already been said is applicable to these requested charges.
[4] “7. The seventh bill of exceptions presents what we think the only serious question on this appeal, but we think a careful review of the real situation will disclose that the court was correct in excluding the details of the specific acts of violence committed by deceased on others than appellant, although he may not have assigned the correct reason for the ruling. Every case must necessarily depend on its own environments, and we think it proper to discuss both the correctness of the ruling and the effect thereof. The two remarks of the court quoted in the bill show such disconnection as that it is obvious that the court sought more light after his first remark and before his final ruling.
“It must first be noted that what the court remarked as to his reasons for his ruling was said in the absence of the jury, and therefore could have in no way affected the testimony already and afterwards introduced by appellant as to the bad general reputation for violence of deceased, nor have affected the jury. Appellant was permitted to at length testify to all he knew about deceased and to testify to all that he had heard as to specific and isolated acts of violence of deceased towards others. It will also be seen from the statement of facts that the state did not, either by cross-examination or by offering testimony, attempt to dispute any of the testimony offered by appellant and his witnesses as to the character of deceased. The bill of exceptions itself fails to show that appellant knew of these extraneous acts prior to the homicide, or that he had ever hoard of them. The first paragraph of section 2094, Branch’s Annotated Penal Code, reads as follows: ‘Proof of specific acts of violence on the part of deceased is not admissible if there is no evidence that defendant knew of these matters prior to the homicide. Patterson v. State, 56 S. W. 59; Willis v. State, 49 Tex. Cr. R. 142, 90 S. W. 1100; Lubbock v. State, 147 S. W. 258; Smith v. State, 70 Tex. Cr. R. 62, 156 S. W. 215; Wilson v. State, 70 Tex. Cr. R. 627, 158 S. W. 513; Harper v. State, 170 S. W. 723; Echols v. State, 170 S. W. 789.’
“It is well settled that a bill of exceptions taken to the exclusion of evidence should disclose the relevancy and materiality of the proposed evidence, and that inferences will not be indulged to supply the omission of such essentials. Branch’s Annotated Penal Code, § 212. This court is not required to, and will not, look to the statement of facts in aid of a bill of this character. Conger v. State, 63 Tex. Cr. R. 327, 140 S. W. 1122; Banks v. State, 62 Tex. Cr. R. 552, 138 S. W. 406; Golden v. State, 146 S. W. 945; Harris v. State,. 67 Tex. Cr. R. 251, 148 S. W. 1074.
“The case of Smith v. State, 67 Tex. Cr. R. 27, 148 S. W. 699, was reversed because the accused was not permitted to prove by himself that he knew of his personal knowledge and from hearsay of several unlawful attacks made by deceased on others, even though he had already proven the general reputation of deceased; in the case at bar appellant was permitted to, and without objection did, prove all that he desired in regard to the reputation of deceased, and did himself testify, without objection, to all he knew, either from hearsay or from personal knowledge, about any specific or isolated act of violence committed by deceased. The bill of exceptions shows that appellant went into detail in regard to these specific acts, and that he testified fully in regard thereto. We quote from the bill: ‘The defendant having testified to his knowledge by hearsay and by actual personal knowledge of facts which are as follows: That he had heard of a violent assault on the part of deceased Tom Gardner, herein, on a negro, in the presence of Sam Bateria, said assault being without any cause or provocation whatsoever, and that in said assault the deceased threw two or three bottles of beer at the negro, and at the time of said occurrence many people were in Bateria’s store. That he also had heard that the deceased had assaulted one George Walker, without any cause or provocation whatever, a short time prior to the date of the homicide, and that the deceased drew a knife on George Walker and attempted to cut him, and that the deceased followed the said George Walker several blocks and went into different places, and the said George Walker went into one place, and the deceased attempted to cut him, as well as cut George Walker.’s brother, but that he was prevented from so doing by one Harry Arnold, who lived in Houston Heights. He further testified that he knew of a violent assault made by the deceased on one Charlie Danna, without any cause or provocation, which took place some few months prior to the homicide, and that he had heard that the deceased had beat and struck the said Charlie Danna over the head twice with a rock. He further testified that he had heard that the deceased had threatened one Mag Smith, to do him serious bodily harm with a knife, all of which was some few months prior to the homicide, and that said act on the part of the deceased was unprovoked by the said Smith, and that the deceased was prevented from cutting the said Mag Smith'by bystanders, and that he had heard that the deceased, prior to the homicide, frequented negro sporting houses in the reservation, and that whilst intoxicated, about two weeks prior to the homicide, without any cause or provocation whatsoever, the deceased beat and struck an inmate of that house.’ He was also permitted to introduce evidence that the reputation of deceased was that of a violent and dangerous man. To none of this testimony did the state offer any contradictory evidence.
“8. Bill No. 8 relates to the ruling of the court in refusing to strike out an answer of the witness Frank Samaratina. After the witness had testified that he saw appellant strike deceased in the breast below the heart and saw the blood on the shirt of deceased and had seen the wound, he was asked, ‘What kind of a wound was that?’ and without objection he answered, ‘about an inch wide, a dirk knife.’ Appellant moved to strike out the answer as calling for a conclusion of the witness, and his motion was overruled. That deceased was killed with a dirk or two-edged instrument is amply shown by other testimony, and, under such circumstances, this bill would present no reversible error.
“In his Penal Code, § 1853, Mr. Branch states the following proposition: ‘If the opinion of the witness as to the manner in which the injuries were inflicted, though incompetent, did not and could not operate to the prejudice of defendant, its admission is not ground for reversal’—citing Steagald v. State, 24 Tex. App. 207, 5 S. W. 853. The Steagald Case, in which a life penalty was assessed for murder, supports the proposition stated.
“9. Bill No. 9 shows that the witness Samaratina was asked by the state if he knew how long the defendant had been living in that sporting house in the reservation, and that the witness answered: ‘No, I never knew. I knew he was out there, laying up out there; that is all.’ The objection was made that the question was irrelevant and immaterial and inadmissible for any purpose, and highly prejudicial. The object or purpose of the state in asking the question is not shown, and nothing is stated in the bill from which it can be determined whether or not the ruling was correct. The record shows that appellant had asked for a suspended sentence, and the jury was entitled to know what kind of man he was and what he did in passing on that issue. It was shown that the keeper of the house of prostitution was the wife of appellant, and, from the whole of the testimony, we think the testimony admissible on the issue of suspended sentence.
“10. The tenth bill complains of the ruling of the court in refusing to permit appellant to prove by the witness Samaratina, on cross-examination, that the witness had on the night before, while the trial was in progress, been arrested for vagrancy in a sporting house in the reservation. The bill recites that the purpose of this testimony was to affect the credibility of the witness. In section 169, Branch’s Annotated Penal Code, citing many authorities from this court, the rule is thus stated: ‘Defendant or any other witness cannot legally be impeached by proof that he was arrested for or charged with or convicted of a misdemeanor that doe» not impute moral turpitude.’
“One of the cases cited, Ellis v. State, 56 Tex. Cr. R. 15, 117 S. W. 978, 133 Am. St. Rep. 953, is directly in point, since in that able opinion by Judge Davidson it is held that vagrancy is not one of those violations of the law which would justify proof of an arrest or conviction therefor as a matter of impeachment.
“11. Bill No. 11 is a blanket bill covering objections to three questions asked the wife of appellant. Two of these questions were not answered so far as the bill discloses, and the objections to the only question answered are in no way verified as true. In section 152 of Branch’s Annotated Penal Code, on page 87, the rule governing a bill of exceptions taken because of going into new matter on cross-examination of the wife is thus stated: ‘A bill of exceptions taken to the action of the state in going into new matter on cross-examination of the wife of the defendant must, to be sufficient, show as a fact that she had not been asked as to such matter on her direct examination, or . the direct examination must be set out in the bill of exceptions’ — citing Brown v. State, 65 Tex. Cr. R. 121, 144 S. W. 265; Golden v. State, 146 S. W. 945.
“The answer of the witness that she did not remember whether or not she went out and hit deceased with a bunch of 'keys is in no way shown not to have been legitimate cross-examination. On appeal, the presumption necessarily is that the ruling of the trial court was correct unless it is shown otherwise, and we are unable to find either in this bill or in the statement of facts anything showing any improper cross-examination of appellant’s wife, although the court is not required to go to the statement of facts to aid a bill of this character. It is unquestionably shown that the trouble first arose with the wife, and her acts and conduct were admissible that the transaction might be shown to the jury, she being a party to the entire trouble, whether the state’s view or appellant’s view is correct.
“12. Bill No. 12 complains of a question asked on cross-examination of the witness Fife, who had testified to the good reputation for peace of the appellant, as to whether it was true that appellant had the reputation of being kept up by sporting women and being a pimp. The bill does not show that the question was answered, and as the bill shows that the court informed the jury that it could only be considered by them in passing on whether or not they would suspend his sentence should that question arise, and could not be considered by them in passing on his guilt or innocence, no injury is shown.”

The judgment is affirmed.
      <j&wkey;iror other oases see same topic and KEY--NTJMBER in all Key-Numbered Digests and Indexes


author: PBENDEBGAST, P. J.

text:
    QUILLIN v. STATE.
    (No. 4055.)
    (Court of Criminal Appeals of Texas.
    May 17, 1916.
    On Motion for Kekearing, June 14, 1916.)
    1. Taxation &wkey;>571 — Tax Collectors— Criminal Offenses.
    The offenses by state officers having state money in their custody denounced in Pen. Code 1911, arts. 96, 97, by article 144, and by article 107, are separate and distinct, and neither is in conflict with or repeals the other, as they denounce, respectively, fraudulent and willful failure of a tax collector to pay tax funds into the state treasury at the end of each tax year, mere failure of a tax collector to remit to the state treasurer at the end of each month, and willful and negligent failure of a tax collector to account for and pay over tax funds when required by the comptroller.
    [Ed. Note. — For other eases, see Taxation, Cent. Dig. §§ 1130, 1131; Dec. Dig. &wkey;571.] .
    2. Embezzlement <&wkey;24 — Persons Liable— “Principal.”
    Under Pen. Code 1911, art. 74, defining “principals” as all persons who are guilty of acting together in the commission of an offense, and articles 96, 97, defining and penalizing misapplication of public money by public officers, one not a public officer nor employed in such service may be prosecuted as a principal for misapplication of public money, although he could not commit it alone.
    [Ed. Note. — For other cases, see Embezzlement, Cent. Dig. § 36; Dec. Dig. <&wkey;24.
    For other definitions, see Words and Phrases, First and Second Series, Principal.]
    On Motion for Behearing.
    3. Indictment and Information &wkey;s83— Charging Accused as “Principal.”
    An indictment of one not a public officer nor employed in such service, for misapplication of public moneys as a principal under Pen. Code 1911, art. 74, defining “principals” as all persons who are guilty of acting together, in the commission of an offense, and articles 96, 97, defining and penalizing misapplication of public money by public officers, need not allege the facts relied on to show accused to be a principal, although the offense may not have been actually or personally committed by him.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 226; Dec. Dig. t&wkey;S3.]
    Appeal from Criminal District Court, Travis County; A. S. Fisher, Judge.
    C. C. Quillin was convicted for the misapplication of state tax money, and appeals.
    Affirmed.
    Worth S. Bay, ’of Austin, and McLean, Scott & McLean, of Ft. Worth, for appellant. Odell & Bamsey, of Ft. Worth, amicus curiae. C. A. Sweeton and C. C. McDonald, Asst. Attys. Gen., for the State.
   PBENDEBGAST, P. J.

Appellant was convicted as a principal for the misapplication of state tax money; one Druesedow, as tax collector of Harris county, alleged to have actually committed the offense. His punishment was assessed at seven years in the penitentiary. The sole question in the case is one of pleading. We will therefore state the indictment and the grounds on which it is attacked.

The Indictment: There were several counts. All of them except the third were eliminated. Outside of the necessary preliminary and concluding allegations, which are usual, the third count alleges: That Karl L. Druesedow, in Harris county, Tex., on or about May 1, 1914, and' before this indictment was presented, was an officer of the government of said state, to wit, was the duly elected, qualified, and acting collector of taxes in and for Harris county, in said state, and was then and there by law and in virtue of his said office the receiver and depositary of public money belonging to said state, and as such officer, by virtue of said office, there had come into his hands and was then and there in his possession a certain sum of public money belonging to said state, to wit, tlie sum of $29,7&9.34, current money of the United. States, of that value, said sum of money being balances then and there in his hands of tax money belonging to said state, collected by him for said state by virtue of his said office during the period of time from May 1, 1913, to April 30, 1914, and which said sum of money he, said Druesedow, did then and there unlawfully, willfully, and fraudulently fail to pay into the treasury of said state at the time prescribed, the time prescribed by law being on or before the 1st day of May, 1914, and that on or about May 1, 1914, C. C. Quillin, did then and there unlawfully, willfully, and fraudulently act together with the said Dru-esedow in the commission of said offense.

The indictment was based on articles 96, 97, and 74 of our Penal Code, in connection with the duties of collectors prescribed by our Revised Civil Statutes. We will now ' state these articles of the Code and the substance of the Revised Civil Statutes applicable herein.

Article 96: If any officer of the government who is by law a receiver of public money, or any clerk or other person employed about the office of such officer, shall fraudulently misapply any part of such public money, he shall be punished by confinement in the penitentiary for a term of not less than two nor more than ten years.

Article 97: Within the term “misapplication of public money” are included the following acts: (Subdiv. 6.) The willful failure of any officer to pay into the state treasury at the time prescribed by law whatever funds he may have on hand.

Article 74: All persons are principals who are guilty of acting together in the commission of an offense.

The substance prescribed by the Revised Statutes and actual practice is to this effect: The tax collector is authorized and required to collect all taxes due the state and county of his county, and he is charged as a liability on his part with all of said taxes. This perhaps, besides others, includes all ad valorem, poll, and occupation taxes.

Article 7618: At the end of each month he is required, on forms furnished by the comptroller, to make an itemized report to the comptroller, showing each and every item of said taxes collected by him during said month, accompanied by a summarized statement showing full disposition of all state taxes collected. He is also required to then present such report together with the tax receipt stubs to the county clerk, who shall within two days compare said report with said stubs. If they agree in every particular, the clerk shall certify to the correctness of said report. The tax collector then immediately forwards it to the comptroller, and is required to pay to the state treasurer all moneys collected by him for the state during said month, with certain exceptions and his commissions on total amount collected. Then at the end of the tax year, which is fixed at May 1st of each year, he is required to finally adjust and settle his account for the whole year with the comptroller, and “shall pay over to the state treasurer all balances in his hands belonging to the state.” In order to enable him to do so, the commissioners’ court is required to convene on or before the third Monday in April for the purpose of examining and approving his final settlement papers. In this settlement the commissioners’ court is required to allow the collector for all delinquent and insolvent taxpayers, in which event the court itself must certify that such insolvent or delinquent taxpayers have no property out of which to make the tax which is assessed, or that they have moved out of the county, or that no property can be found in the county belonging to them out of which to make the taxes.

This annual settlement is entirely additional to, and embraces additional matters from the monthly reports and remittances otherwise required, and failure to make which monthly remittances is made a misdemeanor by article 144, P. O. This prosecution was not had under either articles 107 or 144 of our Code.

Our law expressly makes the comptroller supervisor of the tax collectors, authorizes and requires him to furnish them various blanks for the transaction of their business and reports, and also expressly authorizes and requires him to notify the collectors to make remittances to the state treasury of all taxes collected by them from time to time during each tax collecting year, in addition or otherwise than said monthly remittances expressly required by statute of them, and they are required to comply with his instructions and requirements.

Formerly our laws required tax collectors to remit to the state treasury the state taxes collected by them only quarterly, or perhaps only annually. But, as the state necessarily, in order to run the government, had to pay out large sums monthly to its employes, officers, and at times pay special appropriations, etc., it became necessary, in order to prevent the state from being on a deficiency basis from time to time, to require the collectors to remit monthly to the treasury taxes collected by them, which was done. The legislation of the state from time to time, and the records of our courts, clearly show that the state has had to deal with at least three different classes of collectors: One careless and indifferent, who merely failed to make remittances monthly; another who fraudulently and willfully withheld from the treasury taxes collected by them and thereby misapplied them; and still another who willfully and negligently failed to account for tax money in their hands and pay it to the state treasury whenever expressly required and notified to do so by the comptroller.

This first class was distinctly embraced by said article 144, which made it a misdemeanor only for a collector to merely fail at the end of each month, or within three days thereof, to remit to the state treasurer the amount due by him to the state for taxes collected for the preceding month.

The second class is embraced in said articles 96, 97, wherein it is made a penitentiary offense, with a term of not less than two nor more than ten years, if such collector fraudulently and willfully fails to pay into the state treasury at the end of each tax year, and thus misapplies, whatever of the tax funds he at that time may have on hand.

The other class is embraced by article 107, which makes it an offense for any tax collector who shall willfully and negligently fail to account for all moneys in his hands belonging to the State, and pay the same over to the state treasurer whenever and as often as he may be directed to do so by the comptroller; and, if he violates that article, his punishment is fixed at not less than three nor more than ten years.

This makes it clear that neither articles 144 nor 107 are in conflict with or repeal or modify the offense prescribed in articles 96, 97, but each provides for a separate and distinct offense. If this indictment had been preferred under said article 144, it would have been necessary only for it to have alleged that the tax collector of Harris county had failed within three days after the end of any given month to promptly remit to the state treasury the amount due by him to the state, alleging that amount, and that indictment could not have embraced the offense prescribed by either articles 96, 97, or 107. If the indictment had been preferred under article 107, it would have been necessary for it to have alleged that the comptroller on a given date had directed said tax collector to account for and pay over to the state treasurer the tax money he had collected belonging to the state, alleging the amount, and that such tax collector had willfully and negligently failed to do so, thus making additional and different allegations from that under article 144, and without such additional allegations no conviction could have been obtained under article 107. Without doubt the indictment in this case by its face shows that it was preferred under said articles 96, 97, and that every allegation made therein complies and is in strict conformity to said articles, which is an entirely distinct offense, as stated, from those prescribed by either article 107 or article 144. We see no necessity of further discussing or illustrating the distinct and different offenses prescribed by said articles. A mere reading and application of them clearly demonstrates that neither is in conflict with the other, and that the Legislature intended that they should not be, and that the Legislature intended also that neither should repeal or affect the other.

Appellant’s objection to the indictment wherein he claims the failure of the state to allege the failure of Druesedow “to pay the money over to the state treasurer as prescribed by law,” etc., is untenable. And so is his other like objection that the indictment fails to charge that Druesedow failed to pay over to the state treasurer all balances, etc.; he basing his objections on the idea that this indictment was preferred under article 144, instead of articles 96, 97, as stated. The allegation in the indictment that he failed to pay the money into the state treasury clearly follows the statute under which the indictment herein was preferred. Besides, the payment of such taxes to the state treasury would, in law and in fact, be the same thing under these statutes as paying it to the state treasurer, and vice versa.

This brings us to the discussion of appellant’s objections to the indictment most earnestly insisted upon in oral argument and by his printed brief herein, which, in substance and effect, is that, as the offense denounced applied to a tax collector only, and that the offense could be committed by no one except a tax collector, no other outside party could be a principal with him in the commission of the offense; in other words, that as appellant was not alleged to be a clerk or other person employed about the office of Druesedow, he could not therefore legally be a principal in the offense alleged.

We have thoroughly considered this question and extensively investigated the authorities applicable thereto, and we are clearly of the opinion, both upon authority and reason, that appellant’s contention is not sound. The indictment speaks for itself, and is in plain and unequivocal language. Briefly summarized, it alleges that Druesedow was tax collector of Harris county, and as such collected $29,759.34 of state taxes belonging to the state, and had that sum on hand as balances on May I, 1914, and that he unlawfully, willfully, and fraudulently failed to pay it into the treasury at the time the law required him to do so, which was May 1, 1914, and that appellant unlawfully, willfully, and fraudulently acted together with said Druesedow' in the commission of said offense. Now, let us apply the law to the allegations, or the allegations to the law. The law, summarized, is that, if Druesedow, tax collector of Harris county, fraudulently and willfully failed to pay said money into the state treasury at the said time prescribed, he would be guilty of misapplying it, and that, if appellant acted together with him in doing this, he (appellant) would be a principal with him in the commission of that specific offense. Our statute as to who are principals is applicable to each and every offense denounced by law, exactly the same as if it was incorporated in each article xn'e-scribing a specific offense (with possibly some exceptions not necessary to mention). Of course, it would be wholly inapplicable where one person only should be concerned in the commission of a specific offense. On the other hand, is is specifically applicable to every offense where another than the actual doer acts together with the doer in committing the offense. Our statute on principals was intended to, and actually does, embrace everyone who acts together with another who actually commits an offense. Otherwise the more guilty of the two might escape all punishment for the most heinous crime. To illustrate this case: Under the allegations in this indictment, it might be shown that Druesedow was an honest and faithful officer, scrupulously discharging all the duties thereof; that Quillin came in contact with -him and showed-him how easy and safe it would be for him to rob the state of the tax money which he had collected, and actually induced him to do so. As compensation for this cunningly devised and iniquitous plan of robbing the state he (Druesedow) might turn over, or pay, to him (Quillin) a part of this very money. The intent, even if first entert’ained by Druesedow, to withhold and misapply the money, would not alone constitute the offense. It must be combined with the act of fraudulently and willfully doing so. And Druesedow could appear in Austin, or elsewhere, with the money in his pocket to turn into the treasury, as an honest man should do, and at the last moment just before he actually pays it into the treasury Quillin should approach him and induce him to then and there commit the act, and then and there pay to him (Quillin) a part of the fund which he induced Druesedow to then and there withhold from the treasury, and thus' complete the crime. Under such circumstances it would be an outrage on justice and law that •Quillin, the more guilty party, should escape, and that Druesedow alone should be punished for the crime which Quillin induces and acts together with him in committing, and is, in fact, responsible for Druesedow committing. Other illustrations might be given, but we think it unnecessary. We have not distinguished between accessories and accomplices and principals under our law. This is wholly unnecessary, as the sole question we are' passing upon is as to the sufficiency of the indictment.

The authorities clearly establish the principle that one can be a principal of another when physically or actually incapable of committing the offense himself; for instance, in rape, in order to commit that offense, whether by force, or on a girl under 15, it is absolutely essential that a male shall with his sexual organ penetrate the sexual organ of the female. It would, of course, be impossible for a woman to do this, but she can be and is a principal when she acts together with the male who actually does this. This is well settled by the authorities. We cite only some of them. Campbell v. State, 63 Tex. Cr. R. 595, 141 S. W. 232, Ann. Cas. 1913D, 858, and authorities therein cited; State v. Burnes, 82 Conn. 218, 72 Atl. 1083, 16 Ann. Cas. 465, wherein it is said, “that a person may be guilty as a principal * * * of a crime which he is personally incapable of committing alone is too well settled to require extended citation of authorities;” State v. Jones, 83 N. C. 605, 35 Am. Rep. 586; State v. Comstock, 46 Iowa, 265; Strang v. People, 24 Mich. 1. And while it is held that a man cannot be guilty of rape by himself forcibly having sexual intercourse with his own wife, yet he can be and is a principal if he assists another to thus have intercourse with her. People v. Chapman, 62 Mich. 280, 28 N. W. 896, 4 Am. St. Rep. 857; State v. Dowell, 106 N. C. 722, 11 S. E. 525, 8 L. R. A. 297, 19 Am. St. Rep. 568. And-see Daw v. Com., 75 Va. 885, 40 Am. Rep. 750. So an unmarried man who himself could not be guilty of bigamy by marrying a single woman yet is a principal when he aids, etc., a married man to thus marry. Boggus v. State, 34 Ga. 275. In State v. Rowe, 104 Iowa, 323, 73 N. W. 833, it was held that, while a county treasurer could only himself embezzle county funds in his hands, yet another who could not himself have committed embezzlement of those funds could and would be guilty as a principal if he acted with the officer and aided him in committing the offense. So in People v. McKane, 143 N. Y. 455, 38 N. E. 950, it was held that a person who is not a member of a board of registry, who alone as such was required to do a certain thing, could not himself commit an offense which only a member of the board could do, yet he could be, and was, a principal of such officer if he induced the other to commit the crime, the court saying:

“The fact that he may, for some reason, be incapable of committing- the same offense himself, is not material so long as it can be traced to him as the moving cause by instigating others to do what he could not do himself.”

To the same effect are U. S. v. Snyder (C. C.) 14 Fed. 554, and U. S. v. Bayer, 4 Dillon, 407, Fed. Gas. No. 14,547, and other cases and text-books which could be cited, but we think it unnecessary.

In oral argument appellant presented and relied upon a case from Michigan. At the time we took no memorandum of the case, presuming it would be cited somewhere in appellant’s brief, but we failed to find it there, or elsewhere in the record. We have been informed, however, that that case was Shannon v. People, 5 Mich. 72. We have carefully read that case, and, in our opinon, instead of being an authority in appellant’s favor, it is against him. Under the peculiar statute of that state and indictment therein it was held that the proof offered did not sustain title offense as alleged, and tliat lie was indicted under the wrong statute, having been indicted directly as committing the offense, without any allegation that another who alone could commit the offense had done so. The very defect in that case was expressly met by the allegations in this. The fact that the laws of Michigan made an accomplice a principal would not make that case authority under our law to hold the indictment invalid. .

We are clearly of the opinion that the indictment in this case is unquestionably valid, and the judgment will therefore be affirmed.

On Motion for Rehearing.

In the original opinion we stated that in oral argument appellant relied upon a certain Michigan case, and that at the time we took no memorandum of it, presuming it would be cited in his brief, “but we failed to find it there.” That was the statement of this writer. Neither of my Associates are in any way responsible therefor. I was absent and did not hear the oral argument when the case was submitted. In some unaccountable way I overlooked the citation of the case in appellant’s brief. However, as a matter of-fact, it was cited therein in a paragraph to itself with other matter. When I thus overlooked it, I was anxious to be certain to get the right case and study it; for I understood it was insisted upon as an important case in point in this case. I inquired of others who heard the oral argument to know what case it was. None of them could inform me at the time. Later I was informed it was the Michigan case discussed, in the original opinion. However, as I was apprehensive that might not be the case, but it might be some other, I made said statement. Otherwise, if I had been sure I had the right case, I would have made no statement at all on the subject; for, under the circumstances, it would have made no difference whether it .was cited in the brief or - not. When, as stated, I in some unaccountable way overlooked it in the brief, .1 thought appellant’s attorneys had not cited it therein, as it is not infrequent that attorneys read to the court in oral argument cases not cited in their briefs. I make this explanation and correction of my mistake in justice to all concerned. The mistake, however, in no possible way affected appellant or any question in his case. It turned out he got the full benefit and consideration of the case cited by his attorneys.

Appellant contends that the indictment is fatally defective because it did not allege what he said or did which .would make him a principal, claiming that it was necessary that this should be done. This is never necessary. The authorities so holding are many and uniform. We know of no case, and none has been cited, holding, or intimating a holding, to the contrary. Judge White, in his form for an indictment under our statutes of principals, specifically shows that no such allegation is necessary. White’s Ann. P. C. § 85. Under article 74, P. C., in section 86, he says:

“It is not necessary to allege the facts relied upon to show the defendant to be a principal, although the offense may not have been actually committed by him. If he is a principal by reason of the part performed by him in the commission of the offense, he may be convicted under an indictment charging him directly with its actual commission”—citing Williams v. State, 42 Tex. 392; Gladden v. State, 2 Tex. App. 508; Davis v. State, 3 Tex. App. 91; Tuller v. State, 8 Tex. App. 501; Mills v. State, 13 Tex. App. 487.

Judge Willson, in his Forms (4th Ed.) No. 733, under the articles of our Code (74-78, inclusive) on principals, likewise shows that it is wholly unnecessary to allege the facts which make one a principal. His form shows that a party is to ,be charged directly with the commission of the offense without any allegation of what he did or said to make him a principal. He says:

“It is unnecessary to allege the particular facts which constitute each a principal. Under a general indictment charging the defendant, or defendants, directly with the commission of the offense, any acts which make him a principal may be proved” — citing some of the cases cited by Judge White and others.

In some recent cases we have had occasion to quote Mr. Branch also on this subject with approval. We again do so. He says:

“The acts which make the defendant a principal need not be alleged in the indictment. A principal offender may be charged directly with the c.ommission of the offense, although it may not have actually been committed by him. Cruit v. State, 41 Tex. 477; Williams v. State, 42 Tex. 392; Bell v. State, 1 Tex. App. 598; Davis v. State, 3 Tex. App. 93; Tuller v. State, 8 Tex. App. 591; Mills v. State, 13 Tex. App. 489; Farris v. State, 26 Tex. App. 105, 9 S. W. 487; Watson v. State, 28 Tex. App. 40, 12 S. W. 404; Finney v. State, 29 Tex. App. 184, 15 S. W. 175; Gallagher v. State, 34 Tex. Cr. R. 306, 30 S. W. 557; Campbell v. State, 63 Tex. Cr. R. 595, 141 S. W. 233 [Ann. Cas. 1913D, 85S]; Oliver v. State [65 Tex. Cr. R. 150] 144 S. W. 616; Madrid et al. v. State [71 Tex. Cr. R. 420] 161 S. W. 95; Dillard v. State, 177 S. W. 102.” 1 Branch’s Ann. P. C. § 676; Arensman v. State, 187 S. W. 471, and other cases recently decided, but not yet reported.

Exactly to the same effect is 1 Vernon’s Cr. Stat. § 23, p. 42.

Each of the cases cited by Judges White and Willson and Mr. Branch are directly in point. We will quote from but two of them.

Before this court was created, and when the Supreme Court had criminal jurisdiction, Cruit and King were jointly indicted for stealing two bales of cotton with the intent •to appropriate them to their use and benefit. Cruit alone was tried. The court instructed the jury, if King stole the cotton with the intent to appropriate it to his and Cruit’s use, and Cruit was present when the cotton was stolen, and, knowing the unlawful intent of King, did aid by acts in taking, etc., the cotton, to convict him. The jury did convict him. The Court said:

“It is admitted that all who are present at the commission of a crime and give aid are principals. But it is insisted in an ingenious argument that the indictment does not warrant k verdict against appellant on the proof of the facts indicated in the charge to which we have referred. If the indictment had charged King with stealing the cotton, and that appellant, knowing the unlawful intent, was present, aiding and assisting him therein, it is conceded the charge of the court would have been strictly correct. But it is said appellant is charged with stealing the cotton, and not with aiding King to steal it, and, to convict him under this charge, the proof must show that he took the cotton with intent of converting it to his own use. With however much force we may' concede the objection has been urged, we regard it as more specious than sound. The indictment does not, as it seems to be supposed, charge the taking to have been with the intent to appropriate the cotton to the use of King alone, but to the joint use of appellant and King. And, if the objection should be sustained, it would result that in all cases where there are two or more principal offenders it would be necessary to sot forth in the indictment the particular acts done by each of the parties connected with the transaction. This certainly has never been the practice in prosecutions of this character, and has always been held to be unnecessary.” Cruit v. State, 41 Tex. 477.

In Mills v. State, 13 Tex. App. 489, Mills was indicted separately for shooting Berry. Dart was in no way mentioned in the indictment. This court said:

“Upon the trial the defendant excepted to all evidence tending to prove that Dart shot Berry, upon the ground that there was no allegation in the indictment to that effect. The court overruled the objection, and the defendant excepted. We are of the opinion that the ruling of the court was correct. The state proved that Dart did the shooting, and that defendant was present, and, knowing the unlawful intent of Dart, abetted and encouraged him in the commission of the offense.
“The question here raised is this: Must the indictment charge all of the parties engaged in the commission of the offense, in order to the admission of evidence to prove that a party not on trial committed the act, and that the defendant (the party on trial) was present, and, knowing the unlawful intent of such person, aided him by acts or encouraged him by words or gestures? We are of the opinion that this question must be answered in the negative. If the party is present and knows of the unlawful intent, and aids by acts or encourages by words or gestures the party who actually commits the unlawful act, he is held a principal actor, and can be prosecuted and convicted as such. In this case defendant told Dart to shoot; that he would stand by him. Dart shot. Dart’s act was the .act of defendant to the same extent and to all purposes in law as if defendant had actually shot Berry himself; and it is proper for the indictment to charge him with the actual shooting of Berry, omitting any or all others engaged in the commission of the act.”

If the offense in this instance had been murder, arson, rape, or any other felony, it would have been wholly unnecessary to have made any allegation at all about Druesedow. Quillin could have been charged directly with having committed the offense, although Druesedow himself committed it, and Quillin was merely a principal by reason of what he did or said. It was only because under this particular law Druesedow was in a class who alone could directly commit such a crime that it was necessary to allege what he did at all. Then, after making the necessary allegations which the indictment did as to Druesedow, it was only necessary as to Quil-lin to allege as it did, that he did unlawfully, willfully, and fraudulently act together with Druesedow in the commission of the said offense; this is the very language of the statute. No other allegation whatever as to what Quillin said or did was necessary.

All other questions were discussed and correctly decided in the original opinion. No further discussion of any of them is necessary.

The motion is overruled.
      <&wkey;)For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes