author: PRENDERGAST, P. J.

text:
    URBEN v. STATE.
    (No. 3587.)
    (Court of Criminal Appeals of Texas.
    June 9, 1915.
    Rehearing Denied June 25, 1915.)
    1. Peejuet &wkey;o33 — Geneeal VeRdiot — Peooe to Sustain.
    Where there are several assignments of perjury, proof sufficient to sustain any good assignment will sustain a general verdict of conviction.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 117-124; Dec. Dig. &wkey;33.]
    2. Peejuet <&wkey;25 — Elements—Materialitt.
    An indictment for false swearing need not charge that the matter or thing alleged as the basis of the false swearing was in any respect material to any matter or fact then under investigation, as it is only requisite that it- be a false oath as to a fact past or present.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 82-89; Dec. Dig. <¿^25.3
    3. Peejuet <&wkey;21 — Indictment—Proceeding in Which Oath was Administered.
    Under Code Cr. Proc. 1911, art. 465, providing that an indictment for perjury or false swearing need not charg-e the precise language of the false statement, an indictment for false swearing, charging that defendant had a claim against a railroad and had been paid money thereon, and that the false statement as to such claim was deliberately and willfully made and sworn to, and was deliberately and willfully false, as defendant knew when he made it, was sufficient.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 72-75; Dec. Dig. <&wkey;21.]
    4. Indictment and Ineoemation &wkey;?137 — Duplicitt.
    The fact that the two counts of an indictment were substantially the same would be no ground to quash it.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 480-487; Dec. Dig. &wkey;137J
    5. Peejuet <&wkey;32 — Pbosecution—Evidence— Aeeidavit.
    In a prosecution for false swearing to an affidavit made to the claim agent of a railroad on which defendant claimed to have been injured while an employs, the affidavit, with the proof as to its execution and defendant’s signature and oath thereto, without proof by the attesting witness, was admissible; and defendant’s deposition in a civil case in another district court, proved up by the officer before whom it was taken, was also admissible.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 108-116; Dec. Dig. &wkey;S2J
    6. Peejuet <&wkey;36 — Pbosecution—Evidence.
    Evidence in a prosecution for false swearing held not to justify a peremptory charge to acquit.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. § 133; Dec. Dig. <&wkey;>36.]
    7. Peejuet <&wkey;37 — Ohaeactee oe Oath.
    In a prosecution for false swearing, where the court, in reference to the oath made by defendant, charged that the alleged false statements must have been made by defendant of his own free will and accord, and that to warrant a conviction it was necessary that the state prove that the affidavit was voluntarily made, sufficiently defined the word “voluntarily,” and defendant’s requested addition “unrestrained by external interference, force, or influence, and not prompted or suggested by another,” was properly refused.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 134-138; Dec. Dig. &wkey;37.]
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    George Urben, alias Robert E. Erwin, was convicted of false swearing, and he appeals.
    Affirmed.
    Paul C. Greene and A. S. Baskett, both of Dallas, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of false swearing and assessed the lowest punishment.

Appellant claimed that while working as an employé of the Missouri, Kansas & Texas Railway Company of Texas, called the “Katy,” he was ruptured on July 21, 1914, by the negligence of said railway company. On July 27th, following, while in a hospital for treatment for his claimed injury, he was interviewed by Mr. C. H. Schuttee, the claim agent of the Katy, and then and there made a lull affidavit before a proper notary public setting out in detail when and where and how he was so ruptured, and he claimed $1,-500 damages therefor. The proper execution of said affidavit is fully averred in the indictment, and the affidavit in full copied therein with full explanatory averments. Some 10 specific statements therein are alleged as the basis for false swearing, and they are each properly traversed. Among these special statements are the five following:

“This is the first work I ever did in the employ of a railroad.” “I was never ruptured before in my life and never before my accident on the Katy did I ever have a swelling in my groins and in my back, and never had any soreness in my groins or bag.” “I have never before in my life sustained an injury while working for a railroad or street car company, and have never sustained an injury on a railroad or street car company when I was not in their employ.” “I have never before had a claim or suit against a railroad or street company, and have never collected or been paid money for a claim or suit.” “I have never had a claim or suit against any one before in my life.”

The indictment is in two counts; each is very voluminous. We can see no material difference between them, except perhaps the second is somewhat shorter than the first. Each is substantially, if not literally, in the form prescribed by Judge White in section 352 of his Ann. Penal Code, and also that of Judge Willson in his form 142.

Appellant made a motion to quash the indictment on various grounds. Most of these become wholly immaterial because the court in its charge restricted' the jury to the consideration of the above five of the statements made the basis of false swearing. As expressly held by this court in Beach v. State, 32 Tex. Cr. R. 253, 22 S. W. 977:

“It is well settled, that where there are several assignments of perjury, and there is proof sufficient to sustain any good assignment, a general verdict will be sustained. 2 Bish. Crim. Proc. § 934; Whart. Crim. Law, 2260; 2 Greenl. Ev. § 93; Am. & Eng. Encycl. of Law, title ‘Perjury,’ § 7.” Moore v. State, 32 Tex. Cr. R. 405, 24 S. W. 95.

In Simpson v. State, 46 Tex. Cr. R. 77, 79 S. W. 530, this court said:

“Where there are several assignments of perjury a conviction may be predicated upon either and it is not necessary to prove the others.” Manning v. State, 46 Tex. Cr. R. 332, 81 S. W. 957, 3 Ann. Cas. 867; Hutcherson v. State, 33 Tex. Cr. R. 73, 24 S. W. 908; Robertson v. State, 150 S. W. 893.

We will, therefore, state his objections as applicable only to the last two of the above-quoted assignments made the basis of false swearing herein.

One of his grounds to quash is: Because the indictment nowhere charged that the matter or thing alleged as the basis for false swearing was in any respect material to any issue or matter then under investigation. This has been expressly held against appellant by this court in an opinion by Judge Henderson, in Wilson v. State, 49 Tex. Cr. R. 497, 93 S. W. 547, saying:

“We understand that any false oath as. to something past or present affords the basis of false swearing. It is not necessary that it be on a material question, as in perjury; it is simply requisite that it be a false affidavit to a fact past or present.”

The other ground is that the indictment does not allege when or where he had a claim against any other railroad company, nor what railroad company, or the amount or nature of the same, or when and where he was paid money on such a claim, or how much he had been paid. On this point the indictment in addition to alleging that his said statement is false, etc., also alleges: “And whereas in truth and in fact the said George Urben has had a claim against a railroad company, and has collected and has been paid money for such a claim”—and further that said alleged false statement was deliberately and' willfully made, and was deliberately and willfully false as he (the said George Urben) then and there well knew when he made the same.

It was wholly unnecessary to make any further or other allegation on this point than was contained in the indictment. Code Cr. Proc. art. 465; Branch, Criminal Law, § 650, p. 417; Jones v. State, 174 S. W. 1071.

Bach count of the indictment was sufficient. The fact that the two counts were substantially the same would be no ground to quash it.

Said Schuttee fully identified the said affidavit copied in the indictment, produced and introduced in evidence on the trial. He testified that he wrote the same to get the facts about appellant’s claimed injuries, as he presumed he wanted to make a claim for damages, and that when he had written it in appellant’s presence he gave it to him and asked him to read it over and to read each page and to sign each page, which appellant did. Mr. George West, the notary public before whom appellant swore to said affidavit, testified that appellant signed and swore to it before him two distinct times; that when he first swore to it there was no attesting witness, and that when he took it, thus first sworn to, to Mr. Schuttee that Mr. Schuttee gave it back to him and told him to have appellant to again swear to the affidavit with an attesting witness, and that he (West) again presented it a second time to appellant in the presence of Florence Scott, who then and there signed it as an attesting witness; that at this time he again swore appellant to it after he signed it this second time and that he also, on this occasion, swore Florence Scott as an attesting witness. All this is shown on the face of the affidavit itself. Florence Scott was not produced as a witness, and did not testify to prove up the signing, witnessing, and swearing to said affidavit by appellant. The court did not err in admitting in evidence said affidavit with the proof made as to its execution and being signed and sworn to as shown above. It was unnecessary to also prove it up by Florence Scott. Adams v. State, 49 Tex. Cr. R. 361, 91 S. W. 225; Whart. Crim. Law (11th Ed.) § 1576.

Neither' did "the-court-err in' admitting in evidence the deposition of appellant in a civil case in another district court of Dallas county, it being- clearly established by the officer who took the deposition that appellant gave the answers and signed and swore to the same, having been proven up by the said officer before whom they were taken.

The evidence clearly established by the testimony of two or three witnesses, as well as the sworn testimony of the appellant in answer to the interrogatories in said civil case, that prior to his claimed injury in this case he had been ruptured while in the employ of another railroad company other than the Katy, that he had made a claim against said railroad company for $500 for said rupture, and had been paid by that company that sum therefor. The evidence is overwhelming, and in no way contradicted, that appellant’s said affidavit in the particular hereinabove mentioned was false, and he knew it was when he signed and swore to it, and that he made the said false affidavit under all the circumstances necessary to show his guilt. The court, therefore, should not have directed the jury to acquit him by giving appellant’s requested peremptory charge to that effect

The court gave an apt, full, and clear charge, and together with the special charge given at appellant’s request completely presented the matter correctly in every way to the jury for a finding. If it was necessary at air to define the word “voluntarily” in his charge, the court correctly did so in this language:

“ ‘Voluntarily,’ as used in this connection means that the alleged false statements must have been made by the defendant of his own free will and accord.”

And the court did not err in refusing to add thereto, as requested by appellant, this:

“Unconstrained by external interference, force, or influence, and not prompted or suggested by another. Now if you find and believe from the evidence that the defendant did not make this alleged false statement voluntarily, or if you have a reasonable doubt thereof, yon will acquit him, and say by your verdict ‘not guilty.’ ”

The court, in refusing to add this to his charge, stated the reason he did so was:

“The court believes he has correctly given a definition of ‘voluntarily.’ The court does not believe that if external interference or influence was brought to bear on him or that some one prompted or suggested it to him that this would prevent it from being voluntary. If so then a man could swear falsely and go free if some one asked him to do it. I see no evidence of fraud or duress.”

The evidence in no way tends to show that there was any fraud or duress whatever towards appellant when he signed and swore to said affidavit, but, on the contrary, it shows that he did so voluntarily as defined by the court. Besides, in other portions of the charge the court told the jury specifically that in order to warrant a conviction for this offense, among other things, it was an essential element to be proven by the state that said affidavit was voluntarily made, and that if such element was wanting a conviction could not be had, and further, affirmatively, required the jury to believe beyond a reasonable doubt that such was an elementary essential. And still in addition, charged that the burden of proof was on the state, the presumption of innocence prevailed until his guilt was established beyond a reasonable doubt, and if they had a reasonable doubt to acquit him. And still further, gave appellant’s special charge No. 5, which required the jury again to believe from the evidence beyond a reasonable doubt, that said affidavit, in the particular mentioned, was voluntarily made, and unless the jury so found beyond a reasonable doubt to acquit him.

No error in any particular in the trial of this case has been pointed out. The judg' ment is affirmed.
      <grs>For other eases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HARPER,, J.

license: Public Domain

text:
    PARK v. STATE.
    (No. 3631.)
    (Court of Criminal Appeals of Texas.
    June 25, 1915.)
    1. .Ckiminai, Daw <@=3112 — Venue—Daeceny.
    In theft, a conviction may be had in any county into which the property is carried after being stolen.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. § 188; Dec. Dig. <¿=3112.]
    2. Chimin An Daw <@=3108 — Venue — Bub-G1AEY.
    In burglary, conviction must be had in the county in which the house is broken and entered.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 175,179-185; Dec. Dig. <@=> 108.]
    3. Bueglaby <@=»41 — Evidence—Sufficiency.
    In a prosecution for burglary, evidence held insufficient to support a conviction of breaking and entering a certain freight car with intent to commit theft while in a certain county.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 94-103, 109; Dec. Dig.
    Appeal from District Court, Bastrop County; Ed R. Sinks, Judge.
    F. D. Park was convicted of burglary, and he appeals.
    Reversed and remanded.
    G. O. Brown, of San Antonio, Aaron Bur-leson, of Smithville, and John T. Duncan, of Da Grange, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER,, J.

This is a companion case to cause No. 3630 against the same defendant. In this case appellant was convicted of burglary, while in the companion case he was convicted of theft, both offenses growing out of the theft of some automobile tires. This case in which appellant was convicted of burglary was first tried, and is not near so strong nor cogent as the evidence in the companion case in which he was convicted of theft. In this cause there is no positive evidence that the tires were placed in car No. 70181 Missouri, Kansas & Texas Railway, while in the companion case the waybill and the bill of lading were both introduced to show that fact, and if we arrive at the conclusion in this case that the tires alleged to have been stolen were ever in car No. 70181, we must do so by inference alone.

In this case Henry Young testified that he was shipping clerk for the Federal Rubber Manufacturing Company at Dallas, and he billed out tires Nos. 226988, 227229, 223585, and 223586 to the Southern Tire & Repair Company, at Houston. They were 35 by 4% Q. D. plain Federal tires. That he delivered them to the Dallas Transfer Company for shipment, and he did not know of his own knowledge what became of them. That he did not know whether these tires were ever in car No. 70181. The evidence shows that some tires were stolen out of car No. 70181, somewhere between Dallas and Houston, but then the testimony skips to San Antonio where they found these tires in the possession of the Alamo Auto Sales Company. The manager of this company says these tires were brought to his garage by Billy Edwards. Billy Edwards does not testify in the case, but Charles M. Phillips testified he loaned Billy Edwards $50, and Edwards told him that he had bought some tires from Will Terrell, and Terrell had given Fred Thurmond an order for the money. What Edwards told Phillips about where he got the tires and what he was going to do with the money would be hearsay, and inadmissible if objected to, but it is in the record with no objection thereto, and what strength we should give this hearsay statement of Edwards, when he was not called as a witness, and no reason given why he was not introduced, is a question we do not deem it necessary to decide in this case. But it is on this testimony the state relies to connect appellant with the tires found in San Antonio; and the only testimony in the case to show a burglary of car No. 70181 is the fact that Federal tires of the numbers above stated were stolen out of said car, when there is in this case no positive testimony that those tires were in that car. It is shown by .the testimony of Mr. Phillips that he had loaned money to Edwards, and Edwards said he wanted it to pay for some tires he purchased from Terrell, this being the thread to connect appellant with the theft of the tires found in San Antonio; for in the record it is shown by the testimony of Zina Eggleston that he runs a garage in Smithville, and that Terrell came to him and offered to sell him some tires, that appellant was with Terrell at the time, and appellant said in the same conversation “he was standing up by the side of a box car door, and upon pulling the handle of the door he found the car was open, or the door was loose, and they got the tires out of the door.” The door of car No. 70181 was shown to be rotten at the bottom and could be pulled open, but at the time Terrell offered to sell the tires to Eggleston he said they were Goodrich tires and were 34 by 4, while the tires fbund in San Antonio, and alleged to be the stolen tires, were Federal tires, 35 by 4yz. So this statement would not have much weight in showing that appellant had gotten the Federal tires 35 by 4% out of car No. 70181, but it would be a circumstance to be considered with other circumstances in the case; for, while the stolen tires were of a different make and size, there is no evidence that any other car than 70181 had been burglarized by the door being pulled open by reason of the bottom being decayed.

These are all the facts in this case tending to connect appellant with the theft of the automobile tires out of ear No. 70181, and the burglary of said ear. The evidence in the companion case is much more cogent. We have merely recited the state’s evidence, and have not taken into consideration the testimony offered by appellant, and the above are all the incriminating facts in this case, and this record does not satisfactorily show that the tires found in San Antonio were ever in fact placed in ear No. 70181. As we have said before, if we could consider evidence adduced in the companion case a much stronger case would be made, but in passing on this record we can only consider the evidence adduced when it was tried, and judge of the sufficiency of that testimony without resort to the evidence heard in any other ease.

But in this record another question is presented by the testimony which is not presented in the companion ease. In theft, a conviction may be had in any county in which the property is carried after being stolen, but not so in a burglary case. In a case of burglary, the conviction must be had in the county where the house was broken and entered. If the.facts should be conceded that appellant was guilty of the theft of the tires found in San Antonio, it is very meager to show that the car was broken and gone into while it was in Bastrop county, and this would be necessary to be shown in a case of burglary.

Taken as a whole, we are of the opinion the evidence is insufficient in this case to support a verdict finding appellant guilty of burglariously breaking and entering a car ■with the intent to commit theft in Bastrop county, while the writer agrees to and concurs in the affirmance of the companion case, in which- appellant was convicted of theft, the evidence being much more full and satisfactory in that case than in this one.

The judgment is reversed, and the cause remanded.

       179 S. W. —.

      ®=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    ABRIGO y. STATE.
    (No. 3661.)
    (Court of Criminal Appeals of Texas.
    June 25, 1915.)
    Larceny <&wkey;73 — Instructions — Defenses —Ownership.
    Code Or. Proc. 1911, art. 735, as amended by Acts 33d Leg. c. 138, makes it the duty of the judge, before reading his charge to the jury, to submit it to the defendant, who shall have a reasonable time to present his objections thereto. Article 737a provides that failure to give defendant a reasonable time to do this gives him the right to make his objections for the first time in a motion for new trial and requires a review thereof. In a prosecution for horse theft, the trial judge failed to submit the charge to accused and to submit to the jury the issue as to whether the accused owned the horse, and proper complaint was made in the motion for a new trial. Held, reversible error.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. § 1Ü6; Dec. Dig. <&wkey;>73.]
    Appeal from District Court, Cameron County ; W. B. Hopkins, Judge.
    Jesus Abrigo was convicted of horse theft, and he appeals.
    Reversed and remanded.
    Canales & Dancy, of Brownsville, and E. C. Gaines, of Austin, for appellant. G. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

This appeal is from a conviction for horse theft. We have carefully read the record and considered all of appellant’s claimed errors.

We think there can be no question but that the testimony raised the issue that, if appellant took the horse of which he is charged with stealing, he did so under a claim of right. He claimed and testified it was his own property and was not the property of the alleged owner. The court by his charge did not submit this issue, which was his affirmative defense.

The record, without contest, shows that appellant was a Mexican, who did not understand the English language, and that the charge of the court, before being read to the jury, was not submitted to him, and that he had no opportunity or time to examine it, so as to make objections thereto, even if he could have done so. He had no attorney on the trial. Article 735, C. C. P., as amended by Act April 5, 19X3, p. 278, makes it the duty of the judge, before reading his charge to the jury, to submit it to the defendant, who shall have a reasonable time to examine it and present his objections thereto. Article 737a, as added by said act, expressly provides that the failure of the court to give the defendant a reasonable time to do this gives him the right, in effect, to make his objections for the first time in his motion for new trial, and requires a review of them in the trial court. Proper complaint was made of this failure of the trial judge in the lower court in appellant’s sworn motion for a new trial. So that, under the circumstances and the statute appellant has properly raised and preserved this question. We think the failure of the court to specifically submit this issue to the jury for a finding presents reversible error. Of course, the jury, from all the evidence, may find this issue against him, but under the law and evidence the issue by proper charge should have been submitted.

None of appellant’s other complaints present any error, or call for any discussion.

The judgment is reversed, and the cause remanded.


text:
    FEARS v. STATE.
    (No. 3636.)
    (Court of Criminal Appeals of Texas.
    June 23, 1915.)
    1. Criminal Law &wkey;>1168 — Appeal—Harmless Error — Failure to Require Election.
    Where accused, charged with unlawfully selling liquor, did not in due time request the court to require an election on which of three sales proved a conviction would be sought, he could not complain of the failure of the court to require an election, for his conviction could be pleaded as former jeopardy for any of the offenses proved.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3121, 3125, 3129-3136, 3144; Dec. Dig. &wkey;1168.]
    2. Criminal Law &wkey;>949 — New Tria3>-Newly Discovered Evidence — Requisites.
    New trial on the ground of newly discovered evidence was properly denied, where neither accused nor any one else swore to the motion, and the newly discovered witness did not make any affidavit.
    [Ed. Note. — For other cases, see Criminal Law, Cent Dig. §§ 2337, 2339-2344; Dec. Dig. <&wkey;>949.]
    Appeal from Sabine County Court; J. B. Lewis, Judge.
    Amos Fears was convicted of unlawfully selling intoxicating liquor, and he appeals.
    Affirmed.
    W. R. Cousins, of Hemphill, for appellant. 0. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant appeals from a misdemeanor conviction, with the lowest penalty assessed, for a violation of the law prohibiting the sale of intoxicating liquor in prohibition territory.

The complaint and information charge an unlawful sale of intoxicating liquors by appellant to John Bostick, on or about January 10, 1915. John Bostick for the state, on direct examination, testified:

“My name is John Bostick. I live in Pine-land, Sabine county, Tex. On the 10th day of January, A. D. 1915, I bought three half pints of whisky from the defendant Amos Fears. [Points him out.] I bought one half pint about 10 o’clock in the morning, and another half pint about 2 o’clock in the evening, and about 2:30 in the evening I went back and bought another half pint. I paid 65 cents in Pineland checks for each of the half pints. I paid for each as I got it. The whisky was in half pint bottles. This all occurred in Sabine county, Tex.”

Appellant denied any sale to Bostick, and claimed that Bostick stole the whisky from him. His testimony, if believed, would have been sufficient for the jury to have acquitted him. Likewise, it was ample on the state’s side, if believed by the jury, to have convicted him. The state’s side evidently was believed by the jury. Both sides agreed that prohibition was carried and in force in said county prior to the time the law made such an offense a felony.

Appellant made a motion for a new tria on several grounds, and took a bill of excep tions to the court’s overruling it. There was no error in the ruling.

Appellant ¡requested a charge withdrawing from the jury the evidence tending to establish the three sales of whisky, for the reason that he was being tried for one crime only. The court refused this because, he said, it came too late. If in time, it would have been proper for the court to have required the county attorney to elect which one of the three sales proven he sought the conviction in this case upon, but not having done so, it inured to his benefit, because this trial and conviction could be successfully pleaded as former jeopardy, and the conviction in this case would prevent his trial and conviction for either of the other offenses committed on the same day, as we hold in his companion case this day decided.

The only other question is one ground of appellant’s motion for new trial claiming a new trial on the ground of newly discovered evidence. Neither he nor any other swears even to his motion, and the affidavit of the party from whom he claims the newly discovered evidence could be had makes no affidavit whatever. The motion meets none of the requisites required to authorize or require a new trial on this ground. Gray v. State, 144 S. W. 284; section 1149, White’s Ann. C. C. P.

The judgment is affirmed.
      <&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, J.

text:
    FEARS v. STATE.
    (No. 3637.)
    (Court of Criminal Appeals of Texas.
    June 23, 1915.)
    Gbiminal Law &wkey;>197 — Former Conviction —Identical Transactions.
    Where, on a trial for unlawfully selling intoxicating liquor on or about a specified date, the state proved three sales by accused to the same person, and the court authorized a conviction on any sale proved, accused’s plea of former conviction on a subsequent trial on another information charging the same sales, and where the evidence was the same, must be sustained, though he committed a separate offense each time he made a sale.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 407; Dec. Dig. <&wkey;>197.]
    1 Appeal from Sabine County Court; J. B. Lewis, Judge.
    Amos Fears was convicted of unlawfully selling intoxicating liquor, and he appeals.
    Reversed and remanded.
    W. R. Cousins, of Hemphill, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was prosecuted under a complaint charging him with making a sale of intoxicating liquor to John Bostick on or about the 10th day of January, 1910. This information is identical with that in cause No. 3636 (178 S. W. 518), now pending in this court. On this trial John Bostick testified:

“I live at Pineland, Sabine county, Tex. On or about the 5th day of January, A. D. 1915, I bought three half pints of whisky from the defendant, Amos Fears. [Points him out.] I bought one half pint about 10 o’clock in the morning, and another half pint about 2 o’clock in the evening, and about 2:30 in the evening I went back and bought another half pint. I paid 65 cents in Pineland checks for each one-half pint. I paid for each pint as I got it. The whisky was in half pint bottles. This all occurred in Sabine county, Tex.”

He testified the same in cause No. 3636.

The court in, this cause, and in cause No. 3636 authorized a conviction of appellant if he “did unlawfully sell intoxicating liquor to John Bostick as charged at any time within two years next before the filing of the information.” Thus it is seen that in this case and in cause No. 3636 upon identically the same testimony the court authorized a conviction upon any sale testified to by the witness. It may be and is true that appellant committed a separate and distinct offense each time he made a sale, but in the first case tried' the court authorized his conviction upon either one of the sales. If the state desired to prosecute him more than once it should have elected the identical sale upon which it sought a conviction, and the court should so have instructed the jury. As thé court did not do so, when this case was called appellant filed a plea, in proper form, pleading former conviction. This plea should have been sustained, when it developed the testimony was exactly the same. The state called and relied on no other witness than Bostick in both cases. This question is so fully discussed in Alexander v. State, 53 Tex. Cr. R. 555, 110 S. W. 918, and Piper v. State, 53 Tex. Cr. R. 550, 110 S. W. 899, we do not deem it necessary to do so again. As will be seen by the eases above referred to, and the cases of Alexander v. State, 53 Tex. Cr. R. 555, 110 S. W. 918, and Piper v. State, 53 Tex. Cr. R. 550, 110 S. W. 899, the question in this case is identical with the question in those eases, and in accordance with the opinions in those eases this case must be reversed and remanded.

The judgment is reversed, and the cause remanded.
      cg=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    CLINE v. STATE.
    (No. 3653.)
    (Court of Criminal Appeals of Texas.
    June 25, 1915.)
    1. Homicide &wkey;169 — Evidence — Admissibility.
    In a prosecution for homicide which it was claimed was the outgrowth of a conspiracy to carry on a revolution in a foreign country, evidence showing accused’s membership in the Industrial Workers of the World, an order against which many are prejudiced, and which had no connection with the 'proposed conspiracy, was prejudicial.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. §§ 341-350; Dec. Dig. &wkey;169.]
    2. Criminal Law <&wkey;424 — Evidence—Acts oe Co-Conspirators.
    Where it was the theory of the state that deceased had been killed pursuant to a conspiracy, evidence of the acts of accused’s co-conspirators after he was arrested was admissible to show the reason for the conspiracy and why accused and the others had joined.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1002-1010; Dec. Dig. &wkey; 424.]
    3. Criminal Law <&wkey;>781 — Trial—Instructions.
    In a prosecution for homicide, where the state introduced in evidence statements made by accused at the time he was arrested, accused, though the record would amply support a finding that his exculpatory statement was false, is entitled to have the jury charged that, unless the state show the falsity of such statement, he should be acquitted.
    [Ed. Note. — For other . cases, see Criminal Law, Cent. Dig. §§ 1864-1871, 1898; Dee. Dig. <&wkey;^781.]
    4. Homicide <&wkey;293 — Triai>-Instructions.
    In a prosecution for' homicide, the court should submit every affirmative defense, though the evidence raising it be meager.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 604; Dec. Dig. &wkey;>293.]
    5. Homicide &wkey;>30 — Acts oe Co-Oonspira-tors.
    Where the state claimed a killing was the result of a conspiracy, accused cannot be convicted for the acts of his co-conspirators, unless he conspired to take deceased’s life or conspired to do an unlawful act and the killing was the. result of an attempt to perpetrate it.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 48-51; Dec. Dig. <&wkey;80.]
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Charles Cline was convicted of murder, and lie appeals.
    Reversed and remanded.
    Haltom & Haltom, of San Antonio, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

This is a companion case to that of Serrato, two Gonzales Cases, and Martinez Case, reported in 171 S. W. beginning on page 1133, and the Vasquez Case, reported in 171 S. W. 1160, and 172 S. W. 225.

In this ease appellant was adjudged guilty, and his punishment assessed at imprisonment fjor life in the penitentiary. Some of the questions raised in those cases are presented in this record, but we do not deem it necessary to discuss, them. All the evidence adduced on the trial, in our opinion, was admissible except the book introduced in evidence, which showed that he was a member of the I. W. W. This bill shows:

“The district attorney offered in evidence portions of a book shown to have been in possession of defendant, as follows; On front cover of book: ‘‘Gen. No. 6172. [Bearing Stamp.] Industrial Workers of the World. Label. I. W. W. Universal. Name, Chas. Cline. Address, St. Louis, Mo.’ The book also having stamped on the inside of front cover, the following: ‘Industrial Workers of the World. I. W. W. St. Louis Industrial Union No. 84. July 7th, 1905, St. Louis, Mo.’ And printed upon the first page of the book: ‘Industrial Workers of the World —Official Membership Book.’ [Stamped.] ‘Industrial Workers of the World. General I. W. W. Administration. The member is entitled to work in any industry of the organization where employment is obtained when stamps are affixed, showing the member is in good standing. To be in good standing a member must be paid for current .month.’
“And printed on the second page the following:
“ ‘Labor is Entitled to All It Produces.
“No money should be received without acknowledgment in this book. Members must see that the financial secretary places a stamp in the book for each month for which dues or assessments are paid.
“Issued by authority of the General Executive Board of the I. W. W. Vincent St. John, General Secretary, and Treasurer, 518 Cambridge Bldg., 56 5th Ave. Chicago, Ill.
“And printed on the last page of the book the following:
“ ‘The New Preamble:
“ “The working class and the employing class have nothing in common. There can be no peace so long as hunger and want are found among millions of working people and the few, who make up the employing class, have all the good things of life.
“ ‘Between these two classes a struggle must go on until the workers of the world organize as a class, take possession of the earth and the machinery of production, and abolish the wage system.
“ ‘We find that the centering of the management of industries into fewer and fewer hands make the trade unions unable to cope with the ever-growing power of the employing class.
“ ‘The trade unions foster a state of affairs which allows one set of workers to be pitted against another set of workers in the same industry, thereby helping defeat one another in wage wars. Moreover the trade unions aid the employing class to mislead the workers into the belief that the working class have interest in common with their employers.
“ ‘These conditions can be changed and the interest of the working class upheld by an organization formed in such a way that all its members of any one industry, or in all industries, if necessary, cease work whenever a strike or lockout, is on in any department thereof, thus making an injury to one an injury to all.
“ ‘Instead of the conservation motto, “A fair day’s wages for a fair day’s work,” we must inscribe in our banner the revolutionary watchword, “Abolition of the wage system.”
“ ‘It is the historic mission of the working class to do away with capitalism. The army of production must be organized, not only for the everyday struggle with capitalists, but also to carry on production when capitalists shall have been overthrown. By organizing industrially we are forming the structure of the new society within the shell of the old.’ ”

Appellant objected to the introduction of this testimony on the ground that it does not tend to prove a conspiracy, nor that Ortiz was hilled in pursuance of such conspiracy, and could be used only to influence the minds of the jury by reason of the revolutionary ideas set out in the book. We are inclined to think the objections tenable, and the court erred in admitting this book in evidence. That appellant was a member of the I. W. W. would not tend to show that he had met with his codefendants at the Capones ranch for any illegal purpose, nor the preamble show that the mission of appellant and those with him was to do any act in violation of law. The I. W. W. is not shown to have been furthering any movement to invade Mexico. This membership card has no connection with the “manifesto” introduced. The manifesto clearly shows why appellant and his codefendants had gathered at the ranch and why they were going to Mexico, and was admissible for that purpose, and the court did not err in so holding, but the membership book in the I. W. W. would not have a tendency to so show, but would have a tendency to show that appellant was a member of an organization, the purposes of which a considerable portion of the citizens of the United States do not indorse. Neither can we say the introduction of this book was not hurtful to appellant. He was sentenced to life imprisonment, while in those cases that have heretofore been appealed, and in which the I. W. W. membership-was not introduced, the defendants received only from 5 to 20 years’ imprisonment in the penitentiary. (

Appellant also contends that the court erred in admitting the conduct of the conspirators after appellant was arrested. We do not think so. Ortiz had been killed prior to this time, and this testimony was admissible as tending to show why appellant and the others had banded together, and the extent of their agreement or conspiracy.

However, when arrested, appellant told the officers he “had been captured and forced to go along with the others, and he had escaped from them as soon as he could.” Appellant was arrested separate and apart from the others, and a day prior to the arrest of the others. We think the evidence is ample to show the falsity of this explanation of his presence with the others at the time Buck and Ortiz were captured, at the time Ortiz was killed, and at the time Buck was released on a compromise agreement. But though the record would amply support a finding that the explanation of his presence with the others was false, yet as this court has often said the jury are the judges of the facts; and as the state introduced the statements of appellant at the time he was arrested, which, among other things included this exculpatory statement, appellant was entitled to have the jury instructed that, unless the state by the evidence had shown the falsity of this exculpatory statement, appellant would be entitled to be acquitted.

We also think the court should have given the following special charge requested by appellant:

“Gentlemen of the jury, if you believe from the evidence that J. M. Rangel, Eugennio Al-zalde, and other, or other person, killed the deceased, Candelario Ortiz, with a gun, as charged in the indictment, but if you further believe, or if you have a reasonable doubt that such killing was upon an independent impulse of the party or parties who did the killing, if same was done, and not in pursuance of an agreement with the defendant now on trial, then you shall acquit the defendant, and by your verdict say not guilty.”

The court may have thought the evidence raising such an issue was rather meager, and it is under the evidence in this case, for the evidence of Mr. Buck would tend strongly to show that from the remarks of appellant made at the time they captured him and Ortiz, it was the intention to kill them both; and appellant was aware of. that fact, yet every affirmative issue raised by the evidence in behalf of the person on trial, which if true would entitle him to an acquittal, should be submitted to the jury for their determination.

The charge on conspiracy should have gone further and instructed the jury that, unless they found appellant had entered into a conspiracy to take the life of Ortiz, or entered into a conspiracy to do an unlawful act, and the killing of Ortiz grew out of and was incident to an endeavor to commit such act, or was done in furtherance of the accomplishment of the common design, of all to which appellant was a party, he would not be guilty.

The other grounds complained of we think present no error.

The judgment is reversed, and the cause remanded.
      ®=jFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    JACKSON v. STATE.
    (No. 3641.)
    (Court of Criminal Appeals of Texas.
    June 23, 1915.)
    1. Criminal Law <@=3598 — Continuance — Absence oe Witnesses.
    Where application for process for a witness showed that he was in a designated place and employed by a railroad company, and the return made long before the case was called for trial showed that he was not employed by the company and had not been for over a year at the place and did not live there, and no further process was asked for the witness, refusal of continuance because of the absence of the witness was properly denied.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1335-1341; Dec. Dig. &wkey;> 598.]
    2. Criminal Law <&wkey;589 — Continuance — Prosecutions in Different Courts.
    One indicted in the district court for pursuing the business of selling intoxicating liquors in prohibition territory is not entitled to a continuance pending trial in the county court for sales of liquor, for separate and distinct offenses are charged.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1315-1319; Dec. Dig. <©=p 589.].
    3. Criminal Law <&wkey;1169 — Evidence — Harmless Error.
    Where accused, charged with pursuing the business of selling liquor in prohibition territory, admitted delivering whisky to prosecutor at the time and place charged in the indictment, error in permitting a third person to testify that, as prosecutor came out of the place where he had received the liquor, he asked witness if he wanted a drink, was not prejudicial.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. <&wkey;>1169.]
    4. Intoxicating Liquors &wkey;>36 — Offenses'— Prohibition Territory — Objections to Orders.
    Objections to orders declaring the adoption of prohibition in a county cannot, under Rev. St. art. 5728, be raised on a trial for violating the prohibitory law after time to contest the election has expired.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 43, 44; Dec. Dig. <&wkey;> 36.]
    5. Intoxicating Liquors <&wkey;233 — Pursuing Business of Selling Intoxicating Liquors — Evidence—Admissibility.
    On a trial for pursuing the business of selling intoxicating liquor in prohibition territory, the testimony of a witness that he met accused and asked for whisky, that accused said he would try and get some whisky, and that a little later the witness found a bottle in his wagon, was admissible; the witness having no other person to procure whisky for him.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 293-297, 298V¡¡; Dec. Dig. &wkey;233.]
    6. Intoxicating Liquors <©=5239 — Pursuing Business of Selling Intoxicating Liq-ors — Instructions.
    On a trial for pursuing the business of selling intoxicating liquors in prohibition territory, requested charge that the term “occupation” or “business” means vocation, trade, calling, the business in which one engages to procure a living or wealth, is properly refused.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 331-347; Dec. Dig. 239.]
    Appeal from District Court, Smith County; J. A. Bulloch, Special Judge.
    Mose Jackson was convicted of pursuing the business of selling intoxicating liquors, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was prosecuted and convicted of the offense of pursuing the business of selling intoxicating liquors, and his punishment assessed at three years’ confinement in the state penitentiary.

Appellant moved to quash the indictment on various grounds. The indictment is in substance the same as the form approved by this court in Mizell v. State, 59 Tex. Cr. R. 226, 128 S. W. 127, and discussed at length in Slack v. State, 61 Tex. Cr. R. 372, 136 S. W. 1074, Ann. Cas. 1913B, 112. These opinions have been adhered to, and we see no necessity to again discuss the various grounds.

Appellant also moved to continue the case on account of the absence of Warren Ealy. The court in his qualification of the bill shows:

“The application for process for this witness showed he was in Tyler and employed by St. Louis Southwestern Railway Company.- An officer said he was not employed by said company nor had been for over a year, and did not live in Tyler. This return was made long before the case was called for trial, and no further process asked for, giving the residence or place where the witness could be found. With this qualification, this bill is approved.”

As thus qualified, the bill presents no error.

Appellant moved to postpone the case until some cases pending in the county court in which he was charged with making sales of whisky to J. F. H. Eason could be disposed of. Even if two indictments were pending charging appellant with the same offense, he could not have the one called postponed until the other could be tried. Much less would he be entitled to have a case pending in the district court postponed until a case pending in the county court could be tried, when, as in this case, they charge separate add distinct offenses, and one might be shown, when tried, to be guilty of both making a single sale, and also of being engaged in the business of selling intoxicating liquors.

The evidence shows that appellant went into the toilet situate near the depot at Tyler and delivered a pint of whisky to Mr. Eason. Appellant admits doing so. The only difference in his testimony and that of Mr. Eason is that appellant contends he had purchased the whisky from a negro, whose name he did not know, as an accommodation to Mr. Eason and at his request, while Mr. Eason would have him making a sale of whisky to him. Under such circumstances, the court permitted Douglas Howard to testify that, as Eason came out of the toilet, he asked him if he wanted anything (meaning a drink), to which Howard answered, “No.” If there was any question about appellant delivering the whisky to Eason at that time and place, it would have been error to have admitted this testimony, unless it was in the presence of appellant. The statement of facts would not make it clear whether appellant was so situated that he could have heard the remark, but, as appellant testifies on the stand that he delivered the whisky to Eason, such testimony adds no strength to the state’s case. Tinsley v. State, 52 Tex. Cr. R. 95, 106 S. W. 347.

There was no error in admitting in evidence the orders of the commissioners’ court declaring the result of the prohibition election in Smith county, although the word “liquor” may have been omitted in one place where it should have been. It does not appear there was any such error In the order requiring the publication of the order, nor in the publication itself. Since the adoption of article 5728 of the Revised Statutes in 1907, these matters cannot be raised on the trial of the case after the time to contest the election has elapsed. Kirksey v. State, 61 Tex. Cr. R. 298, 135 S. W. 124.

The bill objecting to the testimony of Douglas Howard presents no error. Howard testified he met appellant and asked for some whisky, and a little later found a bottle in his wagon. As appellant had told him he would try and get some whisky for him, and as Howard had no other person to procure it for him, the testimony would be admissible on the issue of whether or not appellant was engaged in the business charged in the indictment.

All the other bills in the record complain of the action of the court in overruling his motion for a new trial and failure to give several special charges requested. Those special charges, in which) appellant sought to have the court instruct the jury that the term “occupation” or “business” meant vocation, trade, calling, the business in which one engages to procure a living or wealth, etc., were properly refused. The court defined this term as it was held it should be defined in Fitch v. State, 58 Tex. Cr. R. 366, 127 S. W. 1040, in an elaborate and well-considered opinion by Judge McCord. And, in so far as the special charges are the law of this case, they were fully covered by the court’s main charge and the special charges given at the request of appellant.

The judgment is affirmed.
      igs^For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      &wkey;oEor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes