text:
    FORESTER v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 23, 1913.)
    1. Intoxicating- Liquors (§ 239) — Prosecution — Instructions — Applicability to Evidence.
    An instruction, in a prosecution for giving away intoxicants in an assignation house, was not affirmatively erroneous for authorizing a conviction whether accused knew the intoxicants were given away or not, where all the evidence showed that she did know such fact, and had herself often drunk on the premises.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 331-347; Dec. Dig. § 239.]
    2. Criminal Law (§ 1090) — Appeal—Bill op Exceptions — Instructions.
    Error in refusing special charges in a misdemeanor case cannot be considered in the absence of a bill of exceptions with - respect to such charges.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    Appeal from Tarrant County Court; Jesse M. Brown, Judge.
    Beulah Forester was convicted of disposing of intoxicants while the manager, etc., of an assignation house, contrary to statute, and appeals. Affirmed.
    Mays & Mays, of Ft. Worth, for appellant. C. E. Lane, Asst. Atty. Gen., for the ■State.

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

   PRENDERGAST, P. J.

Appellant was tried on August 1, 1913, and convicted under the act of February 23, 1911, page 23 of the Acts of the 32d Legislature. This act is:

“See. 1. That if any person, whether the owner, lessee, manager, housekeeper, proprietor, servant, agent, employs, inmate, visitor or any other person shall sell, give away or drink, or permit to be sold, given away or drunk, any spirituous or vinous or malt liquors, whether capable of producing intoxication or not, in any bawdy house, disorderly house or assignation house, shall be guilty of a misdemeanor, and upon conviction such person or persons shall be punished by imprisonment in the county jail for a period of not less than thirty days or more than ninety days, and by a fine of not less than fifty nor more than five hundred dollars.
“Sec. 2. For the purpose of this act a bawdy house is .one kept for prostitution, or where prostitutes are permitted to resort for the purpose of plying their vocation. A disorderly house is an assignation house or any theater or any playhouse or house, or place where prostitutes or lewd women, or women of bad reputation for chastity, are employed, kept in service, or permitted to resort or permitted to display or conduct themselves in a lewd or lascivious or indecent manner. An assignation house is a house or room or place where men and women meet by appointment made by themselves or by another for the purpose of sexual intercourse.”

We will give the testimony substantially on the material questions in the cáse. Walter Wallace, one of the city detectives of Ft. Worth, testified that he knew appellant and the Rosen Hotel in Ft. Worth, and gave the location of it; that he knew the general reputation of said hotel, and that its reputation was that of a whorehouse; that about the time he arrested appellant on this charge she told him and also Mr. Ladd that she was running the house; that he had seen many prostitutes around there, and saw them drink whisky and beer therein; that he had seen as many as five women at a time therein, whose reputations were bad, and that he had seen appellant present' and sitting around in tile parlor with them and they all drinking beer, and she drinkinsr whisky; that he had also seen two or three men there at such times; that it was a house of bad reputation; “everyone says and knows it is a whorehouse, and I know it is a whorehouse;” that he had arrested two or three women there as common prostitutes and they paid fines as such; that he had seen several women there at a time, of bad reputation, and in the parlor, and saw the appellant present at such times with them, and saw all of them, including her, dancing and drinking beer and whisky; that he knew a woman by the name of Green, and another by the name of Sprinkle, and arrested both of them there as common prostitutes; that appellant had been there two or three years; her reputation is that of a common prostitute, and she had paid fines as such six or seven times. On cross-examination: That he had been at that house many times, possibly 50, more or less; that he had only made three arrests therein of women as common prostitutes — one was said Mrs. Green, and another Sprinkle, and appellant — and that he had arrested appellant at the same time on this charge; that he had known that place to be a whorehouse for two or three or six years.

Mr. Ladd, another city detective of Ft. Worth, testified that he knew appellant, and she had been at said Rosen Hotel for two or three years; that at one, time when he was there he saw her sitting on the edge of a bed with a man; that he had seen women drink beer and dance there; that he knew the general reputation of said hotel and that it was bad — as being a whorehouse. On cross-examination: That he had been at said house as many as four times; the first time he saw the said women Green and Sprinkle there; he couldn’t tell who all he saw and each time, nor when it was. “But it is a house of bad reputation, and everybody knows it is a whorehouse. I saw some women there with kimonas on; regular whorehouse dresses.”

Ollie Stanley, one of the Ft. Worth city policemen, testified that he knew said Rosen Hotel, and had known it for several years, and knew its general reputation as that of a whorehouse; he had been there a number of times and had seen them drop a quarter in a slot to make a piano play, and they would dance by it; that the piano was one of those electric pianos in a room fitted up as a dance hall; that he had seen appellant there with several other women and men, and had seen them drink whisky and beer and dance; that he pulled a woman out of bed there one night as a common prostitute and rode her to the city hall; she was in bed with a man at the time; that it was a place where women of bad reputation resort; that he had been there frequently for the past six months or year, and had seen appellant present when they were dancing and drinking beer, and had seen her drinking whisky at such times. On cross-examination: That when he pulled that woman out of bed, appellant was in her room, and in bed with another woman; that appellant begged him not to ride the woman he had arrested to the city hall; that he had never seen appellant in bed with a man, except once lying on a bed talking with a man that was lying behind her; that she had on one of those loose kimonas; the man was dressed, and he was not her husband.

H. G. Musick, another Ft. Worth city policeman, testified that he knew the Rosen Hotel and its general reputation; that its reputation was bad; that he had been there a few times- — he couldn’t tell how many; that he arrested a man and woman there not long ago on a charge of prostitution; that they were in bed together; that he carried them to the city hall; they had a marriage license, and the court turned them loose; that he never saw appellant have any improper relations with any man.

When the state had introduced the above testimony, it rested. The appellant then 'introduced her testimony. She, herself, testified that she had lived or roomed at said hotel something like two years; that she swept the floors there and looked after the linen; that she was merely housekeeper of said hotel; that Robinson owned it; that she had nothing to do with it, except as the housekeeper; had nothing to do with running or receiving the guests and showing them their rooms and got none of the proceeds; she denied telling Mr. Wallace that she ran the hotel; that sometimes “we send down and order beer and whisky from the saloon below when we want it and drink it up there;” that she knew the women, Green and Sprinkle, and still another woman whose name she couldn’t remember, who lived there a year; that all of them were arrested there on charges of being common prostitutes; that personally she didn’t know whether they were that kind of women or not; that she never saw them do anything wrong. On cross-examination: That all three of said women, Green Sprinkle, and the other woman, who resided in said hotel, and all of whom were arrested charged with being common prostitutes, she heard, had paid fines for it. She admitted that she paid three fines herself on being arrested charged with being a common prostitute; that she plead guilty— preferred to do so rather than be published; she denied that she had paid as many as six or seven fines for the same offense. She testified: “Tes, I have heard it said that the-Rosen Hotel had the reputation of being a whorehouse. I have heard people say that it had that kind of a reputation. * * * I have drunk whisky up there in the presence of others, and others have drunk beer there in my presence;” that she never paid for the whis-ky or beer; that when they wanted anything to drink they would send down to the saloon below for it, and the porter would bring it. up and lie would be paid for it; that she never received the money herself; that parties who would be up there would buy the beer or whisky and treat the others there in the parlor; that when they wanted it they would send down to the saloon below and get it and drink it up there; it was drunk in her presence frequently, and she had drunk it.

Hr. Dunlap testified for her that he knew the location of said hotel; that he didn’t know whether it was a whorehouse or not; that he had heard it said that it was; that he knew appellant; that he did the laundry work for the hotel and had done so for about two years; was there about twice a day; that he had never seen anything wrong up there, but had heard it said it was a whorehouse; that Robinson always paid him the bills for the laundry, appellant had nothing to do with it. On cross-examination: That he merely went there to collect the laundry and paid no attention to the place, and never noticed anything wrong with it; that he had heard it had the reputation generally of being a whorehouse; that there could have been prostitutes living there and he not have seen them.

Mr. Ourby, for her, testified that he worked in a drug store close to the Rosen Hotel; that he had been to the hotel a number of times to collect glasses from the soda fountain that had been carried there and left; that he had never noticed anything wrong with the place; that he paid no attention to what was going on; that they frequently sent cold drinks up there, and he would go up to collect up the glasses. On cross-examination : That he wasn’t looking for anything wrong up there, and paid no attention to what was going on; that most anything could be going on there and he would not kndw anything about it, for he wasn’t looking for anything and paid no attention to it. “Yes, I know the general reputation of the house with reference to its being a disorderly house or otherwise; it has the reputation of being a disorderly house. I know nothing about it, personally.”

Mr. Barbie testified for her that he was the clerk in the Rosen Hotel, and had been for several months; that he received the guests, collected from them, and assigned them their rooms; that Robinson paid him and was the one that hired him and to whom he looked for instructions; he knew appellant; she had nothing to do with the hotel and running of it; “she is merely the housekeeper ;” that he did not know her at all in transacting the business of the hotel; that he looked to Robinson alone; that he made his contract with Robinson, and he received the guests and placed them in their rooms in the hotel; that they were mostly transient people who came there over night and left On cross-examination: That he was looking after the hotel for Robinson; that he had been in the hotel a number of times. “I have heard it said that the hotel bore the general reputation of being a disorderly house, and a house to which women of bad reputation resorted, but I know nothing about that part of it myself.”

Anderson testified for her that he was a blacksmith and roomed at said hotel and had been for several months; that he knew appellant; that he had never seen anything wrong with her actions.

Thereupon she rested, and the state, in rebuttal, introduced Tom Blanton, who testified that he was one of the county detectives, and had been for years on the police force of said city; that he knew the Rosen Hotel and its general reputation; that it bore the reputation of being a disorderly house; that he knew appellant, went to her room door shortly before then, knocked, and she got up and opened the door for him, and Robinson was in her bed there in her room; that he had seen women drink beer in that place when appellant was present, and saw her drink whisky in there; that Robinson was not, at the time he saw him in appellant’s bed, her husband, nor have they since married.

Tom Wren testified for the state that he was a city detective, and knew said hotel and was acquainted with its general reputation, and it was that of being a whorehouse; that he had seen women drink beer there, and had seen them do so when appellant was present; that he never saw her receive money for it, but had seen her drink whisky there; that her general reputation is that of a common prostitute.

This is in substance the whole of the testimony.

Appellant has only one bill of exceptions, and that is an omnibus bill. It quotes that portion of the court’s charge submitting the case to the jury for a finding, then quoting the three counts of the indictment under which the conviction was had, and the verdict of the jury. He then complains of the court’s charge because, he claims, it authorized appellant’s conviction whether she lenew said intoxicants were given away or not, and whether she Tmew that same was drunk on said premises.

Certainly this is no proper complaint of this charge, because, not only does all of the testimony show that she knew this, but she herself positively testified to her knowledge of these facts, and that she herself repeatedly drank whisky on said premises. His other complaint to this charge is that it authorized her conviction whether she Icneio said house was a disorderly house or not, and whether or not she knew prostitutes resorted there and plied their vocation. The same may be said of this as of the above; but the court’s charge did not authorize her conviction whether she knew prostitutes resorted there and plied their vocation there or not. The bill then quotes a special charge she requested, which was refused. This special charge was not applicable to the evidence or the law of this case, and, of course, was properly refused. The court’s charge correctly submitted the question to the jury for a finding under the law, as applicable to the facts of this case, and that was all that was necessary for the court to submit. The bill points out no reversible error.

No motion was made to quash the complaint or information. One ground of the motion for new trial is that the court erred in not quashing the information or complaint, and especially the third count, as it charged no offense against the laws of the state. The complaint and information were based on and followed substantially and fully the act of the Legislature first hereinabove quoted, and was clearly sufficient.

The only other ground in his motion for new trial is that the.court erred in refusing to give his special charges numbered from one to fourteen, inclusive.. Appellant is not shown to have taken a. .bill of exceptions to the giving of any of these, and, hence, in a misdemeanor case, they cannot be considered.

Under the law and evidence in'this case, no other verdict and judgment could legally have been rendered, except that convicting the appellant. No reversible error is shown, and the judgment is affirmed.

DAVIDSON, J., absent.


source: Caselaw Access Project

author: PRENDERGAST, P. J.

license: Public Domain

text:
    SOUTH v. STATE.
    (Court of Criminal Appeals of Texas.
    June 27, 1913.
    On Motion for Rehearing, Jan. 7, 1914.)
    On Motion for Rehearing.
    1. Constitutional Law (§ 208) — Class Legislation-Occupation Taxes — Validity.
    Const, art. 8, §§ 1, 2, authorizing the imposition of occupation taxes, which must be equal and uniform on the same class, empowers the Legislature to establish such classes, and Rev. Civ. St. 1911, arts. 7355, 7357, imposing an occupation ■ tax on traveling vendors of patent medicines, is not invalid because exempting merchants and druggists selling patent medicines, for the classification is reasonable.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 649-677; Dec. Dig. § 208.]
    2. Hawkers and Peddlers (§ 7*) — Criminal Oeeenses — Statutory Provisions.
    Under Pen. Code 1911, arts. 3, 6, providing that no person shall be punished for any act unless the same is made a penal offense and a penalty affixed by written law, and providing that the articles in the Penal Code, and other written law may be looked to, article 130, making one pursuing a taxable occupation, without first obtaining a license, liable to a fine not •less than the tax due, when read in connection with Rev. Civ. St. 1911, arts. 7355, 7357, imposing an occupation tax of $100 on traveling vendors of patent medicines, and providing that the commissioners’ court may levy for county revenue purposes, one-half of the state occupation tax on all occupations, prescribes a penal offense for pursuing the business of peddling patent medicines without first paying the occupation tax imposed by the statute and by the commissioners’ court.
    [Ed. Note. — Eor other cases, see Hawkers and Peddlers, Cent. Dig. §§ 16-19; Dec. Dig. § 7.]
    3. Licenses (§ 6*) — Criminal Oeeenses —
    Statutory Provisions.
    Rev. Civ. St. 1911, arts. 7355, 7357, imposing an occupation tax of $100 on traveling vendors of patent medicines, and authorizing the commissioners’ court to levy for county purposes one-half of the state occupation tax on all occupations not otherwise specially excepted, and Pen. Code 1911, art. 130, providing that one pursuing a taxable occupation, without first obtaining a license, shall be fined not less than the tax due and not more than double that sum, are not void on the ground that the penalty m part may be fixed by the commissioners’ court, levying a tax of one-half of that of the state for the county.
    [Ed. Note. — For other cases, see Licenses, Cent. Dig. §§ 5, 6, 19; Dee. Dig. § 6.]
    ,4. Constitutional Law (§ 83*) — Improvement eor Debt — Prohibition—Violation.
    • The failure to pay an occupation tax, whether imposed for revenue or for revenue and police regulation, may be made an offense, and .the punishment therefor is not for a debt with-ip the constitutional prohibition.
    [Ed. Note. — For other cases, see Constitutional Law, Cent.' Dig. §§ 150-151½ ; Dec. Dig. § 83.

    • Appeal from Taylor County Court; E. M; Overshiner, Judge.
    •J. P. South, was convicted of crime, and he appeals.
    Affirmed, and motion for rehearing overruled.
    W. E. Ponder, of Mt. Pleasant, and R. N. Grisham, of Sweetwater, 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.

Appellant was prosecuted and convicted under article 130, P. C., and article 7355 (5049), Revised Statutes of Texas, for unlawfully pursuing and following the occupation or calling of a traveling retail peddler of patent medicines, without paying the tax required by law and obtaining a license therefor, and fined $150.

Appellant attacks the law on which the prosecution was had and conviction secured as being unconstitutional. This court has so many times and in so many cases held the act constitutional that we deem it unnecessary to further discuss the questions or cite all the authorities, but see Needham v. State, 51 Tex. Cr. R. 248, 103 S. W. 857; Huffman v. State, 55 Tex. Cr. R. 145, 115 S. W. 578; Shed v. State, 155 S. W. 524; and Branch’s Criminal Law, § 693.

The judgment is affirmed.

On Motion for Rehearing.

In the rush at the closing of our last term, we did not make a statement of the evidence in this case, nor did we then cite the authorities or discuss the questions presented in the case. In deference to appellant’s motion for rehearing, we now more fully state the case and questions raised and decide them. We think all the questions raised are so well settled and have so many times been discussed we deem it unnecessary to again discuss them to any extent herein.

The following is an agreed statement of the proof:

(1) That by virtue of the laws of this state and an order duly made and entered by the commissioners’ court of Taylor county, Tex., there was levied for the year 1912 an annual occupation tax of $100 to the state of Texas and $50 to said county upon every traveling person selling patent or other medicines in said county.
(2) That on December 15, 1912, and upon other dates during said year, appellant was pursuing and following the occupation, 'calling, and profession of a traveling person selling patent and other medicines in said county.
(S) That at such times during said year he was not a traveler or salesman making sales or soliciting trade for a merchant or merchants engaged in the sale of drugs or medicines by the wholesale.
(4) That at no time had he paid the tax aforesaid to either the state or said county.
(5) That all druggists of said county are now selling and did sell at their regular places of business, but not as traveling persons, during the year 1912, and prior thereto, patent and other medicines such as were sold by him in said county, and that said druggists or merchants are not required to pay any tax, state or county, for so doing, and that there are a great number of druggists in said ‘county engaged in the sale of said patent and other medicine at their regular places of business and were so engaged in such sale during the year 1912, hut not as traveling persons.

Our Constitution, article 8, § 1, among other things, provides: “It (the Legislature) may also impose occupation taxes, both upon natural persons and upon corporations, other than municipal, doing any business in this state.”

Section 2 provides: “All occupation taxes shall be equal and uniform upon the same class of subjects within the limits of the authority levying the tax.”

Under this power and authority the Legislature of this state has practically all the time, and now levies, occupation taxes upon certain classes of persons doing certain classes of business. Thereunder article 7355 (5049) of our Revised Civil Statutes is: “Occupation taxes.- — There shall be levied on and collected from every person, firm, company or association of persons pursuing any of the occupations named * * * an annual occupation tax, * * * except where herein otherwise provided, on every such occupation or separate establishment, as follows: Sec. 2. Traveling vendors of patent medicines. — Prom every traveling person selling patent or other medicines, one hundred dollars ; and no traveling person shall so sell until said tax is paid: Provided, that this tax shall not apply to commercial travelers, drummers, or salesmen, making sales, or soliciting trade for merchants engaged in the sale of drugs or medicines by wholesale.”

Article 7357 (5050) expressly provides that the commissioners’ court of the several coum ties of this state shall have the right and power to levy for county revenue purposes, among other things, one-half of the occupation tax levied by the state upon all occupations not otherwise specially excepted.

Article 130, P. O., is: “Pursuing taxable occupations without license. — Any person who shall pursue or follow any occupation, calling or profession, or do any act taxed by law, without first obtaining a license therefor, shall be fined in any sum not less than the amount of the taxes due, and not more than double that sum.”

The complaint and information in this case follow these statutes and are in full and complete compliance therewith.

As tersely stated by appellant, he attacks the constitutionality of the law under which this conviction was had on four specific grounds, to wit: (a) That said act is viola-tive of the Texas Constitution, art. 8, § 2, in that the same taxes peddlers, of patent medicines and does not,tax merchants and druggists selling the same patent medicine in the same county, (b) Said offense, if any, is not defined by the Penal Code as provided by title 1, art. 1, nor is it in compliance with article 3 of said Code, and is void as a penal statute.' (c) Said statute is void as a penal statute because the penalty in part is dependable-upon the action of the commissioners’ court of Taylor county, whose action in assessing the tax under said article of the Civil Statutes, above quoted, may or may not further penalize said occupation in a sum not less than $50 nor more than ⅜⅛00; it being wholly optional with the commissioners’ court whether they shall levy the same for a given, county or not, and said court not having power under the Constitution to enact penal laws or prescribe penalties. (d) That said act and 'tax, being for revenue and not regulatory and within the police power of the state, is a debt for which imprisonment is inhibited by the Texas Constitution.

We think neither of appellant’s contentions are sound, either upon principle or authority, and that all of them have been correctly held against him.

As to his first contention (a): The said laws, in our opinion, are in strict conformity to and clearly within the express power and right given by our Constitution to the Legislature in sections 1 and 2, art. 8, of our Constitution. As shown above, section 1, art. 8, of our Constitution, expressly gives the Legislature power and authority to impose occupation taxes, both upon natural persons and corporations. And section 2 clearly recognizes that classes may be made for the purpose of imposing occupation taxes, and it requires only that such tax shall be equal and uniform upon the same class of subjects. All the authorities, as we understand, establish the doctrine that classes not only may be made for the purpose of levying and collecting' occupation taxes, but as a matter of justice and right, classes should be made. That there is a difference between a merchant, who has an established place of business and conducts his business only therein, from a person who travels around over the county doing the same character of business there can be no question, and such classification is reasonable and proper. Camp v. State, 61 Tex. Or. R. 229, 135 S. W. 146; Fahey v. State, 27 Tex. App. 146, 11 S. W. 108, 11 Am. St. Rep. 182; 7 Eincy. U. S. Rep. pp. 877, 879; note to 15 Ann. Cas. 986; Ex parte Bradshaw, 159 S. W. 260, and authorities there cited. It is needless to collate the authorities on this proposition.

As to his second contention (b): Our Penal Code, as adopted in 1856, expressly provided by article 3 that no person should be punished for an act or omission, unless the same was expressly defined and a penalty affixed by the written law. Formerly our courts, in applying that article as it then was, held that certain offenses, such as sodomy and fornication, were not so defined and consequently not punishable. Eater this article of the Code was changed so that since then and now an offense is not required to be defined, but any act or omission may be made a penal offense, without being specially defined. The law in this case clearly comes within the latter article as it now is. See notes under article 3, P. C., Judge White’s Ann. P. C. As expressly provided by article 6, P. 0., not only the articles in the Penal Code can be looked to, but “other written Taw of the state” may and should be looked to. This court has always held that this law (article 130, P. C.), in connection with our Civil Statutes prescribing what occupations may be taxed and fixing the amount of the tax and requiring payment thereof and a license before pursuing it, prescribes a penal offense and is constitutional. Languille v. State, 4 Tex. App. 312; Tonella v. State, 4 Tex. App. 325; Carr v. State, 5. Tex. App. 154; Thompson v. State, 17 Tex. App. 258; Ex parte Williams, 31 Tex. Cr. R. 262, 20 S. W. 580, 21 L. R. A. 783.

As to his third contention (c): The law is not void, as contended by appellant, because the penalty in part may be fixed by the commissioners’ court levying a tax one-half of that of the state for the use of the county. Fahey v. State, supra; Davidson v. State, 27 Tex. App. 263, 11 S. W. 371; Roberson v. State, 42 Tex. Cr. R. 599, 63 S. W. 884.

As to appellant’s last contention (d): That failure to pay an occupation tax and take out a license therefor, whether regarded as for revenue or for revenue and police regulation, can be made an offense, there can be no doubt And the punfshment therefor is not such punishment for debt as is prohibited by our Constitution. See the cases of Languille, Tonella, Carr, Thompson and Williams, supra. See, also, the authorities cited in the original opinion.

The motion for rehearing is overruled.


text:
    JOHNSON v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 3, 1913.
    On Motion for Rehearing, Jan. 7, 1914.)
    1. Criminal Law (§ 1144) — Review— Presumption — Proof of Venue.
    Code Cr. Proc. 1911, art. 938, expressly requires that the court shall presume that the venue was proven in the court below, unless such question was made an issue there and it affirmatively appears to the contrary by bill of exceptions properly signed and allowed by the trial judge.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. ⅜§ 2736-2764, 2766-2771, 2774-2781, 2901, 3016-3037; Dec. Dig. § 1144.]
    2. Criminal Law (§ 912⅛) — Review—Necessity of Exception — Venue.
    The question of venue cannot be first raised by a motion for new trial nor by a requested charge.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2136; Dec. Djg. § 912½.]
    3. Criminal Law (§ 564) — Sufficiency of Evidence — Venue.
    Venue need not be proven beyond a reasonable doubt, but, if from the facts in evidence the jury may reasonably conclude that the offense was committed in the county alleged, it is sufficient.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 726, 1277-1284; Dec. Dig. § 564.]
    4. Criminal Law (§ 8141 — Instructions— Circumstantial Evidence.
    In a prosecution for the theft of a mule, where the state introduced positive evidence, which if believed showed that defendant stole the mule and carried it into the county where the offense was laid, a charge on circumstantial evidence was not required.
    [Ed. Note. — For other cases, see Criminal Law, Cent.Dig. §§ 1821, 1833,1839, I860, 1865, 1883, 1890. 1924, 1979-1985.1987; Dee. Dig. § 814.'
    5. Witnesses (§ 269*) — Cross-Examination —New Incriminating Matter.
    New incriminating matter against a husband cannot be brought out in cross-examination of the wife by the state.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 949-954; Dec. Dig. § 269.]
    6. Witnesses (§ 330) — Impeachment—Contradictory Statement.
    Where defendant’s whereabouts on a certain Wednesday night and Thursday morning was material, his wife testified that he was at home all of Wednesday night and left early Thursday morning, telling her he was going to a certain place, and on cross-examination she denied that she had told a certain person that early Thursday morning her husband had gone to a different place, whereupon the state introduced such witness, who testified that she had told him that her husband had gone to that place. Held, that such cross-examination was proper solely for the purpose of contradicting or impeaching her testimony in chief.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1106-1108; Dec. Dig. § 330.]
    On Motion for Rehearing.
    7. Criminal Daw (§ 814) — Instructions— Circumstantial Evidence — Direct Evidence oe Accomplice.
    It is not error to fail to charge on circumstantial evidence, though the only direct evidence is that of an accomplice, corroborated as required by law.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833,1839, 1865, 1883,1890, 1924, 1979-1985, 1987; Dec. Dig. § 814]
    Appeal from District Court, Taylor County; Thomas L. Blanton, Judge.
    C. A. Johnson was convicted of the theft of a mule, and he appeals.
    Affirmed.
    Brooks & Brooks, of Anson, 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

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

   PRENDERGAST, P. J.

Appellant was convicted of the theft of a. mule, and his punishment fixed at the lowest prescribed by law.

The indictment charges that the offense was committed in Taylor county, Tex. The jury evidently believed the testimony by the state to the effect that, whether the actual original taking was in Taylor or Fisher county, the appellant carried the stolen mule into Taylor county. Our statute (article 245, C. C. P.) expressly provides that, where property is stolen in one county and carried by the offender to another, he may be prosecuted in either. Article 257 provides that the indictment may allege that the offense was committed in the county where the prosecution was carried on, and to sustain the allegation of venue it shall only be necessary to prove that by reason of the facts existing in the case the county where such prosecution is carried on has jurisdiction.

Appellant attempted to raise the question of venue in this case for the first time in his motion for a new trial. He has no bill of exceptions whatever on the question. Our statute (article 938, C. C. P.) expressly requires that this court shall presume that the venue was proven in the court below, unless such question was made an issue in the court below and it affirmatively appears to the contrary by a bill of exceptions properly signed and allowed by the judge of the court below.

This court has repeatedly held that the question of venue cannot be first raised by the motion for new trial, nor by a requested charge. Scott v. State, 42 Tex. Cr. R. 607, 62 S. W. 419; McGlasson v. State, 38 Tex. Cr. R. 351, 43 S. W. 93; Barker v. State, 47 S. W. 980; Washington v. State, 77 S. W. 810; Brantley v. State, 42 Tex. Cr. R. 296, 59 S. W. 892; Munger v. State, 57 Tex. Cr. R. 384, 122 S. W. 874; Wynne v. State, 41 Tex. Cr. R. 504, 55 S. W. 837.

Venue does not have to be proven beyond' a reasonable doubt If from the facts in evidence the jury may reasonably conclude that the offense was committed in the county alleged, it is sufficient.

The state introduced positive testimony, if believed, which showed that appellant stole the mule and carried it into Taylor county. In other words, the testimony of his guilt was not dependent purely upon circumstantial evidence. When such is the case, a charge on circumstantial evidence is not required, and should not be given. Section 813, White’s Aim. O. O. P.

A very material question in this case was as to the whereabouts of appellant Wednesday night and Thursday morning. John Baird, an accomplice, who testified for the state, by his testimony showed that he and appellant left appellant’s house early Wednesday night; that appellant went to a pasture and caught said alleged stolen mule, and they together, that night, in appellant’s buggy, drawn by Baird’s horse, took the mule to Abilene, in Taylor county, reaching there early the next morning before or about daylight; that appellant left Abilene soon after they reached there, leaving him to sell the mule, which he did or attempted to do; and that appellant took his (Baird’s) horse and the buggy at Abilene and returned to his home some 30 to 40 miles distant from Abilene, reaching there 'Thursday evening. Besides this, the state introduced other testimony showing that appellant was seen coming from the direction of Abilene some 15 miles from his residence, going towards his residence, driving this horse and buggy, and that he reached his home with said horse and buggy Thursday evening and turned the horse in his lot or pasture. It became quite a material question in the case where appellant was Wednesday night, and where he was and. went Thursday morning. Appellant introduced his wife as a witness for him, who testified that he was at home all night Wednesday night and that he left home early the next morning, about 7 o’clock, and at the time he left told her where he was going, and that was to Bush to see Mr. Derrington. On cross-examination, over appellant’s objection, the state was permitted to ask her if she had not told Mr. Owens about the middle of the morning Thursday morning that her husband and said Baird had gone to Mulberry Canyon that morning, and not to Bush, where she had just testified her husband said he was going. She denied making any such statement to Owens. The court then permitted the state to introduce Owens, who testified that at said place and time she told him that her husband and Baird had gone to Mulberry Canyon that morning. Appellant’s objections, in effect, were that he had not on direct examination brought this out, and it was irrelevant and immaterial, and by it the state sought to impeach her; and the wife could not be used as a witness against him, or cross-examined on something not brought out by him in his direct examination. The statute and rule are that incriminating new matter against the husband cannot be brought out in cross-examination of the wife by the state. But certainly that does not, and has never been held to, prevent any legitimate cross-examination of the wife which contradicts or tends.to contradict or impeach her testimony in chief. As stated above, where appellant was Wednesday night and was and went Thursday morning, was very material. She testified for her husband, as stated above. Then whether or not he was at home and left there early Thursday morning to go to Bush, and that he so stated to her at the time, was material. That she, when first seen that morning, told Mr. Owens that her husband and John Baird had gone to Mulberry Canyon, which she denied telling him, was a material contradiction and impeachment of her testimony, and was admissible. The court, at the time the question was asked her by the state and her testimony given, expressly limited it to impeachment of her, and so he did when Owens’ testimony was given. In addition to this, in charging the jury, he so expressly limited the jury to the consideration of it for that purpose alone. Swanney v. State, 146 S. W. 549; Dobbs v, State, 54 Tex. Cr. R. 554, 113 S. W. 923; Exon v. State, 33 Tex. Cr. R. 468, 26 S. W. 1088; Creamer v. State, 34 Tex. 173; Buchanan v. State, 41 Tex. Cr. R. 127, 52 S. W. 769; Hampton v. State, 45 Tex. 154; Shelton v. State, 34 Tex. 662; Magruder v. State, 35 Tex. Cr. R. 214, 33 S. W. 233; Brown v. State, 61 Tex. Cr. R. 336, 136 S. W. 265; Reagan v. State, 157 S. W. 484; Grimes v. State, 160 S. W. 690, not yet officially reported.

The court’s charge on alibi in appellant’s favor is in the language that has many times been passed upon and approved by this court.

While we have not taken up each of appellant’s grounds in his motion for new trial, all questions raised thereby are embraced in this opinion. In addition to the, testimony of the accomplice, which, if believed, was amply sufficient to sustain the conviction, he is otherwise supported and corroborated by many facts and circumstances proved by other witnesses.

The judgment will be affirmed.

On Motion for Rehearing.

Appellant has only two grounds of complaint in his motion for rehearing. The first is to the action of the court in refusing to give his special charge on circumstantial evidence. We did not particularly discuss this question in the original opinion, deeming it unnecessary. We will now state and discuss it.

The court did not charge on circumstantial evidence. Appellant requested a charge on that subject, which the court refused. The question is raised by appellant in his motion for a new trial (7a) by claiming the court erred in failing and refusing to give his special charge on the subject, quoting the charge, and then states the reason his charge should have been given as because there was no evidence offered by the state which shows or tends to show that defendant ha,d anything to do with the original taking of this mule, except the uncorroborated evidence of John Baird, the accomplice; and because the testimony of said Baird shows conclusively that at the time he and defendant took said mule, and prior thereto, defendant pointed out the mule to Baird and claimed it as his mule; then contends that, if he did take the mule, it must have been by appellant and put in his pasture prior to November 6th and prior to the time Baird’s testimony shows it was taken from defendant’s pasture. Then concludes, “all of which is shown by bill of exceptions No. 8.” There is no such bill in the record, or any other, raising or presenting this question. We have carefully again considered the evidence and especially on this point. It does not show that appellant had any pasture. Mrs. Johnson, his wife, testified, “We lived on the Matthews ranch in Fisher county.” No witness testified that appellant owned or controlled any pasture- at the time and just before this mule was stolen. Mr. Carroll, the owner testified, which was not disputed, that he kept this mule in- his pasture which was right at where appellant then lived; Carroll’s pasture being only across a little lane 30 or 40 feet wide from where appellant then lived. In his testimony he also showed that this mule was stolen on the 6th or 7th of November, 1912. Baird testified that appellant and he took this mule the night of the 6th, carried it to Abilene that night, and had it at Abilene early the next morning. The mule, by several witnesses, was shown to be at Abilene early on the morning of the 7th. The fact, if it be a fact, that in the evening of the 6th appellant and Baird were riding about and coming in sight of this mule, arid appellant pointed it out to Baird and claimed it as his mule, would not show that he had previously stolen the mule. Baird’s testimony is that they were then in the pasture. Whose he did not say. Evidently it was that of Carroll. Certainly, it is not shown that it was in any pasture owned or controlled by appellant. Baird says appellant drove that mule up in his lot and caught it that night, and that they, together, that night took it to Abilene.

It has been so many times and uniformly decided by this court that it is nbt error to fail to charge on circumstantial evidence, though the only direct evidence is that of an accomplice, we deemed it unnecessary to discuss and decide the question in the original opinion. In his motion for new trial, as shown above, in effect, he states that the evidence of John Baird, the accomplice, does show that appellant originally took this mule, and the record shows that John Baird did so testify. His evidence as to the offense was sufficiently corroborated, as required by the court’s charge and- the law, and the court did not err in not charging on circumstantial evidence. Wampler v. State, 28 Tex. App. 853, 13 S. W. 144; Thompson v. State, 33 Tex. Cr. R. 223, 26 S. W. 198; Kidwell v. State¡ 35 Tex. Cr. R. 267, 33 S. W. 342; Rios v. State, 39 Tex. Cr. R. 675, 47 S. W. 987; McKinney v. State, 48 Tex. Cr. R. 405, 88 S. W. 1012; Tune v. State, 49 Tex. Cr. R. 448, 94 S. W. 231; Hanks v. State, 55 Tex. Cr. R. 451, 117 S. W. 150; Rios v. State, 48 S. W. 505; Barber v. State, 69 S. W. 515; William v. State, 45 S. W. 494; Martinez v. State, 61 Tex. Cr. R. 29, 133 S. W. 881.

Appellant’s , other complaint is that this court was wrong in the original opinion in holding that appellant’s wife could be impeached as stated and shown in the original opinion. It is unnecessary to go over and discuss this question further. We will state, however, that appellant’s wife, on direct examination by him, testified that appellant ate supper on the evening of November 6th at home with her and their children, and that Baird was not there that night, and did not take supper with them, but left their house that evening about an hour by sun with two men in a hack, and that she saw Baird no more until after he was arrested in Abilene the next day, and that appellant stayed at home the whole of the night of November 6th, and that he left their home about 7 o’clock on the morning of the 7th, after breakfast, and at the time he then left he told her where he was going. In her direct testimony she did not then say where he told her he was going. On cross-examination, in answer to the state’s question, without any objection, she said he then told her he was going to Bush. The material point in her testimony on this question was that appellant stayed at her house all night that night and left there the next morning with Baird, telling her where he was going. This was very material for appellant. Then it became material for the state, if it could, to impeach her by showing that that very morning she told Mr. Owens that that morning her husband and Baird left her house after breakfast and had gone to Mulberry Canyon, instead of as stated in her original direct testimony. Clearly the state had the right to thus impeach her testimony. In addition to the authorities cited in the original opinion on.this point, we cite Smith v. State, 44 S. W. 520; Crews v. State, 34 Tex. Cr. R. 545, 31 S. W. 373; Exon v. State, 33 Tex. Cr. R. 469, 26 S. W. 1088; Young v. State, 54 Tex. Cr. R. 420, 113 S. W. 276; Red v. State, 39 Tex. Cr. R. 422, 46 S. W. 408.

The motion for rehearing is overruled.


author: HARPER, J.

text:
    BRADLEY v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 23, 1913.)
    1. Criminal L'aw (§ 838) — Evidence—Admissibility.
    In a prosecution for statutory rape, evidence that one of accused’s attorneys before he had been employed, had a conversation with the father of the prosecutrix is inadmissible.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 752, 753, 755, 756, 787, 788, 801, 855; Dec. Dig. § 338.] •
    2. Criminal Law (§ 722) — Trial — Argument of Counsel.
    In a prosecution for statutory rape, where the state improperly attempted to show that one of accused’s attorneys, before he was engaged, had a conversation with the father of the pros-ecutrix, argument by the prosecutor that accused sent his attorney to see the prosecutrix’s father, and that this showed a consciousness of guilt, was highly improper and prejudicial.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 1674; Dec. Dig. § 722.]
    3. Criminal Law (§ 338) — Evidence—Admissions.
    An accused is responsible for his own acts and those done under his authority; but the fact that one who was subsequently engaged as his attorney conferred with the father of the prosecutrix is not admissible as evidence of an admission tending to show a consciousness of guilt.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 752, 753, 755, 756, 787, 788, 801, 855; Dec. Dig. § 338.]
    4. Witnesses (§ 374) — Bias—Evidence.
    ■ In a prosecution for statutory rape, where accused offered a witness who testified only to the bad reputation of the prosecutrix for virtue, evidence that the witness had interested himself in the prosecution, and had attempted to get the girl’s father to stop it, is admissible to show his interest and bias; but it is not proper to go into the details.
    [Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. §§ 1201, 1202; Dec. Dig. § 374.]
    5. Criminal Law (§ 722) — Trial—Argument of Counsel.
    Argument by the prosecutor that accused had sent a witness to attempt to stop the prosecution was highly improper where the witness testified that ho was acting on his own behalf.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1674; Dec. Dig. § 722.]
    6. Criminal Law (§ 722) — Trial—Argument.
    Where accused filed a statutory request that, if he be found guilty, and his punishment assessed at not more than five years, the sentence should be suspended, the prosecutor could not argue that the filing of the request showed a consciousness of guilt.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 1674; Dec. Dig. § 722.]
    Appeal from District Court, Montague County; C. F. Spencer, Judge.
    Claude Bradley was convicted of rape, and he appeals.
    Reversed and remanded.
    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 the offense of rape on a girl under 15 years of age, and his punishment assessed at 5 years’ confinement in the state penitentiary.

In a bill of exceptions it is shown that the prosecuting officer placed W. T. Russell on the witness stand, and attempted to prove a conversation between Mr. Russell and Mr. Orr, the father of the girl alleged to have been raped. Mr. Russell was one of the attorneys for appellant on this trial; but he had not been employed at the time the conversation took place between himself and Mr. Orr. The court correctly sustained the objection of appellant’s counsel, and refused to admit this conversation in evidence. The placing of Mr. Russell on the witness stand, and propounding these interrogatories, was highly improper under the circumstances of this case, for there was no reasonable ground to believe that the conversation was admissible in evidence, but, as the court sustained the objection when made, this alone might not present reversible error; but when the county attorney, in his closing argument, stated to the jury that he had proved that defendant had sent his attorney, W. T. Russell, to see the father of the prosecutrix, and this “showed that appellant was laboring under a consciousness of guilt, that it was tantamount to a confession of guilt,” the error in the proceedings is made manifest. The record does not disclose that defendant ever sent Mr. Russell to see the father of the prosecutrix; in fact, in the bill it is shown that he did not do so, and it does not appear that he knew Mr. Russell went to see her father, and, if Russell had made the visit without his sanction or approval, this would be no evidence of his guilt. A defendant is responsible for his own acts, or those done by his authority, and with his approval and sanction, and he could in no sense be held responsible for the acts of Mr. Russell, at least, before he employed him, and this matter would alone present reversible error.

Again, the defendant placed Jim Foo-shee on the witness stand, and this witness testified that the reputation of the prosecuting witness for virtue and chastity was bad. These are all the questions defendant propounded to him. It was perhaps admissible for the state to show that this witness had interested himself in the matter, and had endeavored to stop the prosecution, as showing his interest and bias; but certainly it was not permissible to go into the details of a conversation had between the witness and the girl’s father. The witness stated positively he went to see Mr. Orr without the knowledge and consent of appellant, and that appellant had no knowledge he had ever gone to see the prosecutrix’s father. The record discloses the following facts were gone into on cross-examination of the witness by the state: “I don’t know that my mission to Terrell veas to get this prosecutrix to marry Claude Bradley. I went over there to see how Mr. Orr was feeling on the matter— to see how he was feeling about it; I was a friend to Mr. Orr myself, and I just wanted to see how he felt about it. I don’t recollect whether or not I mentioned the fact that he had better let Claude Bradley and her marry, and settle the prosecution. I don’t know that I had been instructed to make that proposition. I never spoke to Claude Bradley about that. I would not be positive that his friends instructed me to go see Mr. Orr. There were two or three men talking to me about it. I don’t remember whether his brother was there at the time or not. My impression is that one of his brothers was there at the time. It is true that the old man wouldn’t let the girl marry Claude Bradley, but stated that he would let her marry Rodon. It is true that the marriage between Claude Bradley and her must have, been mentioned.” All this could not but be very hurtful and harmful to defendant, and, as he was not present, had no knowledge that this trip was going to or had been made, this testimony should not have been admitted.

In another bill it is shown the county attorney, in his argument, said: “That the defendant sent Jim Fooshee to Terrell to try to arrange a marriage between Anna Mae Orr and defendant, because he was guilty as charged. That he was suffering from a sense of a conscious guilt. That, if he had been armed with a sense of conscious integrity, he would have never done so.” This was erroneous, and the court should not have permitted such argument to have been made. There is no evidence that appellant sent Mr. Fooshee to Terrell to try and arrange a marriage between himself and the prosecutrix.

It appears from the record that appellant filed the statutory request that, if he was found guilty, and his punishment assessed at not more than 5 years in the penitentiary, the sentence be suspended. This is a right given him by the statute, and such plea is not evidence of any fact, and in bill No. 9 it is shown: “The state’s attorney, both in opening and closing his speech for the prosecution, asserted over and over again, and with great vehemence and earnestness, that the plea of the defendant filed herein, wherein the defendant asked for the benefit of the suspended sentence law, in case of a conviction, was equivalent to a plea of guilty. And that none but a guilty man would file such a plea, and that any man who would file such a plea was guilty, and should be convicted, and the benefits of the suspended law withheld from him.” This was highly improper, and such argument should not have been permitted. If the mere filing- of such a plea was evidence of the fact that “the benefits of the suspended law should be withheld from him,” then the purpose of the law would be defeated, and sucb construction should not be given it as wholly defeats its object and purpose. The filing of this plea is not an evidence in law of guilt. While it is perfectly permissible for the state to argue, if the evidence introduced justifies it, that the person on trial should not be given the benefit of the suspended sentence law, yet the mere filing of the plea furnishes no such grounds for argument, nor should it be construed nor argued as an evidence of conscious guilt.

There are other matters complained of in the record; but the ruling on the above bills will be sufficient to show what evidence is admissible, and what not, and that the prosecuting officers should keep themselves within the record in presenting a case.

The judgment is reversed, and the cause remanded.

DAVIDSON, J., absent.


text:
    BACON v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 23, 1913.)
    Criminal Law (§ 1076) — Appeal—Recognizance.
    An appeal from a conviction will be dismissed, where the recognizance is insufficient to confer jurisdiction on the appellate court.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2708-2716, 3201; Dec. Dig. § 1076.]
    Appeal from Wichita County Court; C. B. Felder, Judge.
    George Bacon was convicted of adultery, and appeals.
    Dismissed.
    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.

Appellant was convicted of adultery, and attempted to appeal. The recognizance is fatally defective.

The case is therefore dismissed.

DAVIDSON, X, absent.


text:
    STEWART v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 23, 1913.)
    Criminal Law (§ 1099*) — Appeal—Statement of Facts — Approval.
    A statement of facts not approved by the trial judge cannot be considered for any purpose.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.*]
    Appeal from District Court, Angelina County; L. D. Guinn, Judge.
    Willie Stewart was convicted of seduction, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant appeals from a conviction for seduction with his penalty fixed at five years in the penitentiary. There is with the record what was perhaps intended for a statement of facts, but it is not approved by the trial judge. It has no approval whatever upon it. Of course, this court cannot consider it for any purpose. There are no questions raised which can be considered in the absence of a statement of facts.

The judgment is affirmed.

DAVIDSON, X, absent.


text:
    HUMPHRIES v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 23, 1913.)
    Criminal Law (§ 1076*) — Appeal—Defective Recognizance — Effect.
    An appeal will be dismissed, where the recognizance is fatally defective.
    LEd. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2708-2716, 3201; Dec. Dig. § 1076.*]
    Appeal from Wichita County Court; C. B. Felder, Judge.
    Rose Humphries was convicted of crime, and she appeals.
    Dismissed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted for keeping a disorderly house, and attempts to appeal. The recognizance is fatally defective.

The appeal is therefore dismissed.

DAVIDSON, J., absent.


text:
    ELMORE v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 11, 1912.
    On Motion for Rehearing, Jan. 29, 1913.)
    1. Criminal Law (§ 412) — Evidence—Declarations in Presence of Defendant.
    In a prosecution for the theft of cattle, a conversation between witness, his wife, and defendant in regard to the projected theft of the animal was admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. ⅜§ 894-917, 919-935; Dec. Dig. § 412.]
    2. Criminal Law (§ 448) — Evidence—Conclusions and Matters of Opinion — Identity of Horse Tracks.
    In a prosecution for the theft of cattle, where there was evidence that defendant was riding a certain horse, that he, with others, buried the fore quarters and returned with the hind quarters, that the hide was buried after the brand was cut out and had been found with the brand cut out, and that the owner of the animal said he would take it to he the hide of the animal he lost, testimony that witness knew defendants’ horse and the kind of tracks he made and had traced the tracks, which corresponded to the route traveled, was admissible not as an opinion and conclusion but as a statement of fact.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1035-1039, 1041-1043, 1045, 1048-1051; Dec. Dig. § 448.]
    3. Larceny (§ 45)—Evidence—Identifica-tion.
    In a prosecution for the theft of cattle, the owner’s testimony that the animal he lost had a certain brand, which was not shown to have been recorded, and that the hide of the buried animal looked like that of the animal lost but had cuts in it where the brands were, was admissible when offered, not to show ownership, but only to show, identity of the hide with the animal missing.
    [Ed. Note.—For other cases, see Larceny, Cent. Dig. §| 135, 136; Dec. Dig. § 45.]
    4. Criminal Law (§ 814)—Instructions— Application to Evidence.
    In a criminal prosecution, instructions as to theories and issues of which there was no evidence were properly refused.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. § 814.]
    5. Criminal Law (§ 507*)—Parties to Offense—Accomplice.
    Evidence that the wife of one of the parties to the killing and theft of a yearling heard them talking- about the theft, but advised against it, and after it was killed and part of it brought to her house refused to have anything to do with it, did not raise the issue whether she was an accomplice.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1082-1096; Dec. Dig. § 507.]
    6. Larceny (§ 55)—Sufficiency oe Evidence.
    In a prosecution for the theft of cattle, evidence held to sustain a conviction.
    [Ed. Note.—For other cases, see Larceny, Cent. Dig. §§ 152, 164, 165, 167-169; Dec. Dig. § 55.]
    On Motion for Rehearing.
    7. Criminal Law (§ 1091)—Appeal—Bill oe Exceptions.
    A bill of exceptions must by its recitals be so certain that it is unnecessary to turn to any other part of the record in aid thereof.
    [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 District Court, Motley County ; Jo A. P. Dickson, Judge.
    George Elmore was convicted of theft of cattle, and he appeals.
    Affirmed.
    J. A. Wheat, of Seymour, Jas. A. Stephens, of Big Springs, L. W. Dalton, of Plainview, and W. F. Ramsey, of Austin, 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 theft of cattle, and his punishment assessed at three years’ confinement in the state penitentiary.

Clyde Smith testified that he, Dennis Kemper, and appellant killed the beef, and, just before starting to go and get it, they were discussing the matter in the presence of his wife. He details a conversation that took place between himself, his wife, and appellant in regard to the theft of this animal. His wife also testifies to this conversation. As appellant was present, took part in it, and said there was no danger of getting into trouble as he killed beeves all the year round, the court did not err in admitting the testimony.

Clyde Smith and his wife testified that on this occasion appellant was riding a certain horse, and Smith testified to the way they went in going after the yearling and returning with the hind quarters of the yearling, and that they buried the head and fore quarters. Olee Rothwell testified that he knew the horse; that he was shod all around, and that he knew the kind of tracks he made; that he traced this horse’s tracks, corroborating Smith in the way they traveled, and also found the head and fore quarters of the beef buried. Many objections were urged to this testimony, but none of them are tenable. They might go to the weight to be given the testimony but not its admissibility. Some may think it ffif-fieult to be able to swear -to the tracks of any horse, but, if one is willing to do so, it is not an opinion but a statement of a fact, and, so far as this court may determine, there may be something peculiar about the track made by the horse which would cause any one to recognize it. Smith also testified that the hide was buried after the brand was cut out. The deputy sheriff went to this place, and found a hide buried there with the brand cut out, and brought it to town. The alleged owner of the animal, Ed Foster, saw the hide and said it looked just like the hide of the animal he lost, and he would take it to be the hide of his animal. This witness’ entire testimony renders admissible that part .objected to. It was not an opinion and conclusion but a statement of facts, from which the jury would be authorized to draw their own deductions.

Mr. Foster was permitted to testify that the animal he lost was branded “7” on the neck and “Diamond F” on the left side. This testimony was objected to on the ground that it was not shown this brand was recorded. This evidence was not offered to prove ownership but the identity of the animal. The hide which was dug up, and which Mr. Foster testified looked like the hide of the animal he lost, had two cuts in it, where he said his animal had these brands placed on it, and this testimony would account for the holes in the hide and why there was no brand on the hide. The court at the request of appellant charged the jury: “Xou are charged that the evidence in this case, in regard'to the brands testified about being on any animal or animals, will not be considered by' you at all on the question of ownership and can only be considered on the question of identity, if it shows anything on that question or that question arises in the case.” The court properly refused the charge peremptorily instructing the jury to find appellant not guilty. There was ample evidence to sustain a verdict of guilt if the jury believed the evidence offered in behalf of the state.

Neither did the court err in refusing to given special charge No. 2, as there was "no evidence calling for such charge. There is no evidence that Kemper and Smith killed the animal, and appellant was only connected with the matter after the death of the animal. If it was Foster’s animal, appellant was the moving spirit in the theft and helped to drive it from its range to the place where it was killed.

There is no evidence which would raise the issue that Mrs. Mary Smith! was also an accomplice. It is true she heard them talking about the theft of the animal, but she advised against it, and after it was killed, and part of it brought to her house, she refused to have anything to do with the beef. Pinckard v. State, 62 Tex. Or. R. 602, 138 S. W. 601. Neither is there any evidence that in killing the animal appellant thought it was his own; consequently there was no error in refusing the charge presenting this theory to the jury.

The only other ground in the motion complains of the sufficiency of the evidence. If the facts made Mrs. Smith an accomplice, there might be some question as to the sufficiency of the corroboration; however, we hardly think this would be the case when we consider the testimony of Olee Rothwell. But, inasmuch as we have held that Mrs. Smith was not an accomplice, there can be no question of the sufficiency of the evidence to sustain the verdict.

The judgment is affirmed.

On Motion for Rehearing.

This case was affirmed at a former , day of this term, and appellant has filed a motion' for rehearing in his brief calling our attention to but one matter in which he claims the court was in error, and that is it was improper to admit the testimony as to the tracks of the horse as corroborative testimony. The bill as a whole reads as follows: “Be it remembered that, upon the trial of the above cause, the state introduced the following testimony, to wit: That about the second week in February he was in defendant’s pasture and found a beef which was claimed to be the one in controversy; that he was at Clyde Smith’s tent and at the watering place where he found the beef in controversy and found some horse tracks at each place, and that they were tolerably fresh, and that the tracks of the horse that he found were similar to the tracks of the horse, and that they were the tracks of the blue horse, defendant rides — to which testimony the defendant objected at the time it was offered upon the following grounds: Because it calls for a conclusion of the witness, and it had not been shown that he was an expert, and it has not been shown that he measured the tracks found, and that he measured the horse’s feet or the tracks of the horse in question to determine the difference between them, if there was any. The other testimony of the witness in regard to said tracks and bearing on this question, which is as set out below, and which the court says in this connection was testified to by the witness, and other witnesses, and the defendant calling attention to this in further support of his objections, are as follows: The witness had testified that he had seen horse tracks at Clyde Smith’s tent and at the watering place where he had found a beef, which is claimed to be the animal in controversy. He had testified that George Elmore’s horse, called' the ‘blue horse,’ was shod all around; that these tracks that he saw at the tent and at the watering place were shod all round, and that he saw the tracks where the fellow had come to the tent and where he found the animal, and that they were the blue horse’s tracks all around where this animal was; that he had just traced the tracks around there. And further Clyde Smith and his wife had testified that the defendant had come to their tent riding the blue horse and •at the time of the commission of the offense was along the last of January or in February; •further it was shown that the tracks were not measured by the witness, and there was no peculiarity of the tracks testified to by the defendant, outside of the fact that they were shod all around; and there was further testimony tending to show that, after the hide was. buried, some one had removed and hidden it at a different place. And- the court overruled said objections and admitted said testimony, to which decision of the court defendant then excepted and tenders this his bill of. exceptions Nq. 3 and asks that the same be signed and approved and filed as a part of the record in this cause, .and which here now is accordingly done this the 10th day of June, 1912.” If any one can tell by this bill what witness so testified and defendant was objecting to by the' bill, it is more than we can - ascertain by its recitals.

And it is held by this court a bill by its recitals must be so certain that it is unnecessary to turn to any other part of the record in aid thereof.. However, dt might be insisted, if any witness- was so permitted to ■testify, it would be- error, and by turning to- the record we find that it was Olee Roth-well' who -testified he saw the tracks where the stolen cow was butchered “and they were the tracks of the blue horse defendant rides.” Appellant earnestly insists that it was error to permit this witness to testify that the tracks were the tracks -of appellant’s blue horse, and cites us to many decisions of this court, -referring especially to the case of Parker v. State, 46 Tex. Cr. R. 461-, 80 S. W. 1008, 108 Am. St. Rep. 1021, 3 Ann. Cas. 893, which he says is “by far the most thorough as well as most satisfactory case in this state.” We are not objecting to the law as laid down in that case, for by reading that case it will be seen that the witness was seeking to compare a track he saw at the place of the crime with another and different track made at another and different place,’ which would necessarily render it but an opinion. And so all the cases cited by appellant are speaking of “comparison of tracks.” In this case no such question arises. The witness is not seeking to compare the track he saw at the place where the animal was butchered with a track made at any other or different place, or at any other or different time, but the witness swears that the track he saw where the animal was butchered were the “tracks of the blue horse defendant rides.” He swears to it as a positive fact. No opinion expressed, no comparison with other tracks, but he swears the tracks are this horse’s tracks. In the Parker Case, supra, the court says: “We would not be understood, however as holding that the witness Stafford was not authorized to testify before the jury as to the tracks he found upon the ground, where he found them, and to what point they led, and the size thereof as they appeared to him, and other conditions and circumstances connected therewith.” It was only where the witness undertook to compare those tracks with tracks found at another and different place does the court say the objection was well taken. If Stafford had been willing to swear that he knew the tracks he saw were made by a certain person, there can be no doubt but what his testimony would have been admissible.

The defendant on cross-examination would have a right to test his knowledge, what fact or circumstance it was that enabled him to recognize the tracks as that of a certain horse or individual, but this all would go to the weight and not the admissibility of the testimony. Mr. Wharton in his great work on Criminal Evidence, § 936, says: “The weight of authority sustains the rule that the witness may always testify to the facts and the circumstances of the footprints and tracks, but the courts are equally divided upon the question of whether or not the witness may express an opinion as to their identity.”

In this case the witness does not propose to swear to .an opinion, but he testifles'to the matter as a positive fact within his knowledge. As stated in the original opinion, we are not in possession of the facts as to why this witness was able to recognize and know the track of this horse any more than when a witness swears he knows a certain man and recognizes him on a given occasion. Yet the fact remains the witness did so testify, and we know of no rule of law which would prevent him from so testifying in one instance and not in the other. It may seem incredible to some that one would so testify, yet, if he does, this does not render it “opinion evidence” nor render it inadmissible. All the cases cited by appellant are cases where it was sought to make a comparison of tracks, as in the case of Ballen-ger v. State, 63 Tex. Or. R. 657, 141 S. W. 93, but in this case there was no attempt to compare the tracks found on the ground with any other tracks; consequentlynthey are not in point, and we adhere to the original opinion.

The motion for rehearing is overruled.


author: DAVIDSON, J.

text:
    MAYES v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 7, 1914.)
    1.Criminal Raw (§ 1099*) — Appeal— Statement of Facts.
    A statement of facts contained in the record will not be considered on appeal when not signed by the attorneys or approved by the-court.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. §- 1099.]
    2.Criminal Law (§ 1121) — Appeal—Record-—Sufficiency of Evidence.
    An objection that the verdict, was contrary to the law and not supported by sufficient evidence could not be considered, where the evidence was not preserved in the record.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2938, 2939; Dec. Dig. § 1121.]
    3.Criminal Law (§ 1090) — Appeal—Presentation Below.
    Objections to the admission of certain testimony were not reviewable, where no bills-of exception were reserved thereto.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 282o-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    Appeal from Dallas County Court,' at Law;: W. F. Whitehurst, Judge.
    Jack Mayes was convicted of unlawfully carrying a pistol, and appeals.
    Affirmed.
    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

   DAVIDSON, J.

Appellant was convicted’ for unlawfully carrying a pistol.

The statement of facts contained in the-record is not signed by the attorneys or approved by the court; therefore it cannot be considered. There were no bills of exception reserved, and all the questions presented for revision are contained in the motion for new trial.

The first ground is that the verdict of the jury is contrary to the law, and the evidence is wholly insufficient to support the-verdict. This cannot be considered because-the evidence is not before us.

The second and third grounds are urged to alleged error on the part of the court permitting witnesses McSween and Jennie-Jones to testify to certain matters, but there-are no bills reserved; therefore these matters are not reviewable.

The judgment is affirmed.


text:
    BLACK v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 3, 1913.
    Rehearing Denied Jan. 14, 1914.)
    LaRcbny (§ 55) — Evidence—Sufficiency.
    On a trial for theft from the person, evidence held sufficient to support a conviction on the theory that accused either committed the theft, or was a principal if it was committed by another.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 152, 164, 165, 167-169; Dee. Dig. § 55.]
    Appeal from District Court, Tarrant County; R. H. Buck, Judge.
    John Black was convicted of theft from the person, and he appeals.
    Affirmed.
    Henry Faulk, of Austin, for appellant. C. E. 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

   HARPER, J.

Appellant was prosecuted and convicted of the offense of theft from the person, and his punishment assessed at two years’ confinement in the state penitentiary.

The indictment is sufficient and charges an offense under our law, and the complaint in the motion in this respect presents no error.

No bills of exception were reserved, and the charge of the court as given is not complained of. The only special charge requested by appellant was given. So the only ground in the motion that needs to be discussed is the one alleging the insufficiency of the testimony. It was a case of circumstantial evidence, and are the circumstances of that strength and cogency as to produce a conclusion that appellant, and no other person, stole the watch from Arthur Black, or that he was a principal in the theft, if Tom Coleman did steal it? Arthur Black, the prosecuting witness, testified that on Monday morning of the 17th of March he went into a saloon on Seventeenth street in Ft. Worth; that appellant was sitting on a bench back next to the wall; he sat down by him. While there were others in the saloon, no one else was on the bench but these two. Appellant asked him the time of day, and he pulled out his watch and told him, 9:16. The prosecuting witness says he went to sleep, and when he waked up appellant was gone, as was also the prosecuting witness’ watch and money. He reported the matter to the officers, and Officer Deering found appellant in a club and searched him, but found no money nor the watch. That he learned at this time that another negro, Tom Coleman, had been with appellant, and he went to look for him, but could not find him, and when he returned to where he had left appellant he had also disappeared. The next day appellant and Tom Coleman were arrested on the streets of Dallas, being together, and the stolen watch was found on Tom Coleman. Coleman in the presence and hearing of appellant told the officer that the watch was the property of appellant, and he had given it to him (Coleman) to soak. The defendant contended that Coleman had the watch in Ft. Worth, and asked him to go to Dallas with him; that he had so'me stuff he wanted to go to Dallas to peddle, and wanted him (appellant) to do so. Under such circumstances we think the jury would be authorized to find that Coleman and appellant were principals in the commission of the offense, and the judgment is affirmed.


text:
    STAHA v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 7, 1914.)
    1. Criminal Law (§ 1099*) — Appeal—Record— Statements of Fact — Time eor Filing.
    On appeal from a conviction for petty theft, in the county court, a statement of facts filed more than 20 days after the adjournment of the court could not be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.*]
    2. Names (§ 16*) — Idem Sonans.
    A variance between a complaint for petty theft which alleged the owner’s name to be “Hanik” and the information which alleged the name to be “Hanak” was immaterial, since the two names were idem sonans; and hence a motion to quash the complaint and information was properly overruled, and evidence that the owner was not known as “Hanik” was properly excluded.
    [Ed. Note. — For other cases, see Names, Cent. Dig. §§ 4, 12-14; Dec. Dig. § 16.*]
    Appeal from Lavaca County Court; P. H. Green, Judge.
    Jim Staha was convicted of petty theft, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant appeals from a conviction for petty theft. The statement of facts was filed more than 20 days after the adjournment of the court, and cannot, therefore, be considered. Durham v. State, 155 S. W. 222, and De Friend v. State, 153 S. W. 881.

The only question we can consider without a statement of facts is appellant’s motion to quash the complaint and information. His motion to quash is that the complaint alleged the ownership of the stolen property in “V. A. Hanik” or “V..A. Hanek,” when the information alleges the name to be “V. A. Hanak.” The complaint and information copied in the record in every instance shows that the name was spelled exactly the same way, “V. A. Hanak.” This matter was all before the court below, and the pdpers before him. He overruled the motion to quash. There is a bill of exceptions in the record, in which it is complained that the appellant was not permitted to prove by the witness Hanak before tbe jury that he was not known as “Hanik,” claiming that that was the way his name was spelled in the complaint. The state objected to this, because it was a matter the jury had nothing to do with, and the court had already passed upon the question. The court sustained the state’s objection. In no event is any error shown in this matter, because the names “Hanak” and “Hanik” are idem sonans. Gentry v. State, 62 Tes. Cr. R. 497, 137 S. W. 696; American, etc., v. Rodriquez, 145 S. W. 654; Smith v. State, 63 Tex. Cr. R. 185, 140 S. W. 1096.

The judgment is affirmed.


text:
    HUMPHRIES v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 23, 1913.)
    1. Criminal Law (§ 1099) — Record—Statement of Facts.
    A paper purporting to be a statement of facts, but not signed by appellant’s counsel or approved by the trial judge, cannot be considered as a statement of facts.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.]
    2. Criminal Law (§ 1097*) — Appeal — Af-firmance — Insubiticient Recobd.
    In the absence of a statement of facts in the record, a denial of accused’s motion for a new trial cannot be reviewed, if the indictment is sufficient.
    [Ed. Note. — For other cases, see Criminal Law, Cent Dig. §§ 2862, 2864, 2926, 2934, 2938, 2939, 2941, 2942, 2947; Dec. Dig. § 1097.]
    Appeal from Wichita County Court; C. B. Felder, Judge.
    A. Humphries was convicted of running a disorderly house, and appeals.
    Affirmed.
    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 convicted of running a disorderly house. There is a paper in the record purporting to be a statement of facts, but it is not signed by appellant’s counsel and has not been approved by the county judge. Under such circumstances it cannot be considered, as a statement of facts must be verified by the trial judge’s signature. In section 1169 of White’s Ann. C. C. P. will be found collated a long list of authorities holding that a document purporting to be a statement of facts, but not approved by and signed by the judge, constitutes no part of the record, and in this court the case stands as though there had been no effort to piake a statement of facts, and the refusal of a new trial cannot be reviewed, if the indictment or information is sufficient in law. In this case the information is sufficient.

Affirmed.

DAVIDSON, J., absent.


text:
    GORDON v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 23, 1913.)
    Affidavits (§ 5*) — Authority to Take — Attorney.
    Affidavits on accused’s motion for new trial for newly discovered evidence cannot be considered, if they were sworn to before accused’s attorney.
    [Ed. Note. — For other cases, see Affidavits, Cent. Dig. §§ 18-27; Dec. Dig. § 5.*]
    Appeal from District Court, Palo Pinto County; W. J. Oxford, Judge.
    Gertrude Gordon was convicted of assault with intent to murder, and appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of an assault with intent to kill and murder, and her penalty fixed at the lowest prescribed by law.

There are but two questions raised, and they were raised by appellant’s motion for a new trial. The first is: She complains that “the evidence is wholly insufficient to support the verdict of the jury and the judgment herein.” This is in no way pressed by the motion for new trial or otherwise. We have carefully read the evidence. It is unnecessary to state it. It clearly and amply sustains the verdict and judgment.

The second ground claimed is newly discovered testimony. This is attempted to be supported by the pretended affidavits of three persons. The state, on the hearing of the motion, proved that each of these affidavits was sworn to before appellant’s attorney. This would make the affidavits illegal, or rather, because thereof, they cannot be considered as affidavits at all. This has repeatedly been decided by this court. Maples v. State, 60 Tex. Cr. R. 171,131 S. W. 567; Patterson v. State, 63 Tex. Cr. R. 297, 140 S. W. 1128, and many other cases unnecessary to cite. Besides this, if the affidavits could be considered, they are wholly ladling in every particular under the statute (article 837, subd. 6, Code Cr. Proc. 1911), and the requisites thereof, shown by Judge White and his citation of authorities under said article in section 1149 of his Ann. Code Cr. Proc.

The judgment is affirmed.,

DAVIDSON, J., absent.


text:
    POWERS v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 23, 1913.
    Rehearing Denied Jan. 21, 1914.)
    1. Burglary (§ 41) — Sufficiency of Evidence.
    Evidence, in a prosecution for burglarizing a storehouse, held, to show at most that M. and another had control and possession of the burglarized building.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 94-103, 109; Dec. Dig. § 41.]
    2. Burglary (§ 28) — Proof—Variance. •
    Where the indictment alleged that the burglarized storehouse was owned and occupied by M. and contained property owned by him, proof that M. and another had possession and control of the burglarized house and property therein did not constitute a variance.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 67-78; Dec. Dig. § 28.]
    3. Burglary (§ 41) — Sufficiency op Evidence.
    Evidence held to sustain a judgment of conviction in a prosecution for burglarizing a storehouse.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 94-103, 109; Dec. Dig. § 41.]
    Appeal from Criminal District Court, Dallas County; W. B. Crawford, Jr., Judge.
    J. W. Powers was convicted of burglary,
    and appeals.
    Affirmed.
    Ed B. Freeman and A. S. Baskett, both, 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.

Appellant appeals from a conviction for burglary, with the lowest penalty affixed.

Appellant raises but two questions in the case: First, he claims the evidence is insufficient to support a conviction; second, that there is a fatal variance between the allegations and proof of the ownership and possession of the burglarized house.

The uncontradicted evidence clearly establishes that on the night of March 4, 1913, a storehouse was burglarized by breaking into one of the windows, and at the time certain property was stolen therefrom. Among other articles then stolen were some kodaks and a manicure or toilet set. The indictment alleged that the house burglarized was owned and occupied by T. Q. Martin, and that the property stolen was Ids property.

As to the first question: Said Martin testified: That his place ’of business was entered on the nighb of March 4, 1913. That he was in charge and control of the burglarized store jointly with O. L. Anderson; that he was one of the joint managers of the Owl Drug Stores, and he and Anderson together had charge of this particular store. He handled the financial end of it, and Anderson the sales end of it. That he presumed Anderson would be the manager. On cross-examination he testified: That the Owl Drug Store is a corporation, and that he and said Anderson owned the stock. That he was the treasurer and bookkeeper, and looked after the collections and attended to everything, except the actual sales. That he did the buying. That Anderson is what you would call the floor manager, and had charge of the help and the opening and closing of the store and the sale of the goods. “I keep a record of the stock in the store in order to be able to buy stock, and have charge of the ko-dak department — look after that as one of my duties. X do not look after the actual retail sales of them or do any of the actual selling myself.” That said Anderson had charge of the sales department, and does the selling himself and by salesman in the store, a Mr. Daniels. That Mr. Daniels at that time looked after the kodaks possibly more than any other man, but that they all had the sale of them. That they recovered this stolen ko-dak and the said manicure or toilet set some six weeks after the burglary.

Said Anderson testified he was one of the partners in the Owl Drug Store, the burglarized store. On cross-examination: That the store belonged to him and Martin; that it is a partnership, but incorporated as the Owl Drug Store; that there were really three owners of it — himself and Mr. and Mrs. Martin — that they bought the store from Mr. Marvin when it was the Owl Drug Store; that Martin and he both had charge of the store; that he had charge of the store department, and Mr. Martin of the stock; that he in a way looked after the employment of help, but that Martin and he always kind of did that between themselves; that Martin in a way had to do with the sales department, and attended to the financial part of the business; that both watched that more or less, he, Martin, more than the witness; that it was not Martin’s store individually; and that Martin did not have the exclusive control and management of it at the time; that Martin rented the place and paid the rent.

The court, at appellant’s request, gave his special charge No. 3 as follows: “The indictment in this case alleges that the defendant burglarized a house belonging to T. Q. Martin, and the proof shows that the alleged burglarized house belonged to the Owl Drug Company, a corporation. I therefore instruct you that in order to sustain the allegation of ownership in the said T. Q. Martin, you must believe from the evidence beyond a reasonable doubt, that he, the said T. Q. Martin, was in the exercise of the actual control, care, and management of said house, and unless you so believe beyond a reasonable doubt, you will acquit the defendant.” The court gave a correct charge, including a charge on circumstantial evidence, to which there is no objection. Our statute (article 457, C. O. P.) is: “Where one person owns the property, and another person has the possession, charge or control of the same, the ownership thereof may be alleged in either. Where property is owned in common, or jointly, by two or more persons, tbe ownership may be alleged to be in all or either of them.” It will be noted that the statute says “possession, charge, or control.” Either is sufficient —possession, charge, or control — in the language of the statute. It is not necessary that the alleged owner shall have the possession, charge, and control, as required by the charge requested and given, copied above.

The evidence above stated was amply sufficient to show that said Martin had the possession, charge, and control of the burglarized house and the stolen property; that Anderson also had such possession, charge, and control, and that the corporation, the Owl Drug Company, was- the real owner would make no difference whatever. At most the testimony would show that both Martin and Anderson had possession, charge, and control. So that the ownership was properly alleged and proven to be in said Martin Ricks v. State, 41 Tex. Cr. R. 676, 56 S. W. 928; McAnally v. State, 57 S. W. 832; Coates v. State, 31 Tex. Cr. R. 261, 20 S. W. 5S5; Duncan v. State, 49 Tex. Cr. R. 150, 91 S. W. 572; Bailey v. State, 50 Tex. Cr. R. 401, 97 S. W. 694; Cogshall v. State, 58 S. W. 1011; Scoville v. State, 81 S. W. 717; Tidwell v. State, 45 S. W. 1015.

On the other question the evidence shows that on the day appellant was arrested some two months after the burglary that Joe Cook, appellant’s father-in-law, phoned the officers to come up to where appellant lived. The officer receiving this call testified that the party who phoned said he knew where some of the goods stolen from said store at the time of the burglary were, and that he, in response to said call, went to appellant’s house or room, and when he got there he went in and arrested appellant, and found some of the stolen stuff there in appellant’s house; that he found this stolen kodak and a dressing or manicure set also, stolen from said house. Appellant’s father-in-law, said Cook, also testified that he was present when the officer went up to appellant’s house or room, and was there when they discovered this stolen kodak and manicure set; that it was in appellant’s room which he, appellant, had rented, and that this property was discovered therein. Appellant made no explanation whatever of his possession of said stolen property. After appellant was arrested, the officers sent him off to jail, and after he was sent off, he, the officer, called upon appellant’s wife there in the room where said stolen property had been found, to give him the kodak and manicure set, which she did, getting it out of the drawer of a dresser at the time. All this occurred in the city of Dallas, where appellant lived, and where the burglarized drug store was situated. As stated above, the evidence clearly established that said drug store was burglarized at night, and this kodak and toilet or manicure set found in appellant’s possession, and in his room was identified and shown to be a part of the stolen property from said drug store at the time it was burglarized. As stated above, the court correctly charged the jury, and, among other things, gave a correct charge on circumstantial evidence, to none of which is there any objection. In addition to the special charge above quoted, at appellant’s instance, the court gave also, at his instance, these two special charges:

No. 5: “The possession of stolen property is never an evidence of guilt unless such possession is recent, personal, and involves a distinct and conscious assertion of claim by the possessor; and, even where the possession is recent and personal, the person in possession must fail to explain his possession, when called upon, or where the facts are such as to call for an explanation before the same shall be taken as a circumstance against him.”

No. 6: “The burden of proving guilt is on the state throughout, and never shifts from the state to the defendant, and no presumption of guilt is to be indulged in by the jury, because the defendant fails to adduce any testimony; but, in order to warrant a conviction, you must believe from the evidence of the state beyond a reasonable doubt that the defendant is guilty.”

Under the many decisions of this court the evidence was sufficient to sustain the conviction. Moray v. State, 145 S. W. 593; Williams v. State, 64 Tex. Cr. R. 494, 142 S. W. 878; Hawthorn v. State, 62 Tex. Cr. R. 114, 136 S. W. 776; Eavro v. State, 39 Tex. Cr. R. 452, 46 S. W. 932, 73 Am. St. Rep. 950; Richardson v. State, 42 S. W. 996; Rust v. State, 31 Tex. Cr. R. 77, 19 S. W. 763.

The judgment is affirmed.

DAVIDSON, X, absent.