text:
    WAGGONER BANKING CO. v. GRAY COUNTY STATE BANK.
    (Court of Civil Appeals of Texas. Amarillo.
    March 7, 1914.
    On Motion for Rehearing, April 18, 1914.)
    1. Bills and Notes (§§ 129, 130) — Demand and Sight Bills — “Payable after Sight.”
    A bill payable on demand is due, and action may be brought thereon, at once, without grace, and is payable on the day of its date, or within a reasonable time, while a bill payable at sight must be presented for acceptance before it can be enforced against parties collaterally liable, and is entitled to grace, since “payable after sight” means after acceptance or protest for nonacceptance, and not from a mere private exhibition to the drawee.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 283-292, 297-309; Dec. Dig. §§ 129, 130.]
    2. Guaranty (§ 42) — Drafts on Third Person-Conditions.
    Defendant bank wired plaintiff bank that defendant would pay drafts on T. Grain Company, with bill of lading attached, drawn by R., and in confirmation thereof wrote a letter to the same effect, stating, however, that the drafts should be sent direct to defendant for payment or credit, and that defendant could not handle the drafts through other banks. Plaintiff thereafter cashed drafts drawn by R. on the grain company, but . these were presented through other banks direct to the grain company and paid by it without any claim against defendant. The draft in suit was presented to the grain company, and payment refused after it had obtained possession of the grain represented thereby by means of authority obtained from R., after which the draft was presented to defendant for payment under the guaranty without bill of lading attached. Held, that the conditions attached to the guaranty were not waived by the previous method of transmitting drafts, and that, the conditions of the guaranty not having been complied with in the transmission of the draft in question, defendant was not liable.
    [Ed. Note. — For other cases, see Guaranty, Cent. Dig. §§ 51, 52; Dec. Dig. § 42.]
    3. Guaranty (§ 27*) — Liability of Guarantor.
    The liability of a guarantor cannot be extended by implication beyond the actual terms of his engagement.
    [Ed. Note. — For other cases, see Guaranty, Cent. Dig. § 28; Dec. Dig. § 27.]
    Appeal from District Court, Hemphill County; F. P. Greever, Judge.
    Action by the Gray County State Bank against the Waggoner Banking Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Cook & Cook, of Yernon, for appellant. H. E. Hoover, of Canadian, and Ewing & Dial, of Miami, for appellee.

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

   HUFF, C. J.

This suit was instituted in Gray county, by the appellee, Gray County State Bank, against appellant, the Waggoner Banking Company, a private bank, and the individual copartners composing the firm the Texas-Oklahoma Grain Company, and J. C. Rider. Afterwards the venue was changed by agreement to Hemphill county, where the case was tried and final judgment rendered. By amended petition appellee alleged, in substance, on and prior to July 8, 1910, the Texas-Oklahoma Grain Company, a corporation, was engaged in buying and selling grain in Gray county, Tex., and had J. C. Rider as its agent for that purpose. Rider purchased grain from producers, and shipped to said company when the shipments were ready, and drew drafts on his principal for the purchase price of the grain, and deposited same with appellee bank, which bank gave credit therefor, and forwarded the drafts to the grain company, to be paid through its bank, the appellant herein. In order to insure the prompt payment of such draft, and in order that the same might be sold to and handled by appellee, appellant wired appellee July 8, 1910, and on the same day confirmed the wire by letter, that it would pay drafts so drawn. By reason of the promise in the wire and letter, appellee thereafter cashed all drafts, and forwarded same to appellant for payment. That the agreement as finally consummated, and the mode and manner in which the business was transacted, was that J. C. Rider would purchase a car load of grain and give checks upon appellee, which appellee would cash, and when a car load was purchased Rider would ship to the grain company and draw a draft on the grain company for the amount, and attach thereto the bills of lading and a sworn statement of the number of bushels the car contained, or the number of pounds it contained; that the draft would then be deposited and credit given for the full amount of the same to the grain company by appellee, and by it forwarded through its correspondent to appellant, and that appellant, after said date, honored various and divers drafts so drawn and forwarded for payment. In accordance with the agreement and the mode and manner theretofore pursued, on July 30, 1910, with bill of lading attached, Rider drew a draft for the sum of $674.50, which was cashed by appellee, and at once forwarded in due course of business to appellant for payment, which was duly presented for payment, but appellant refused to pay the same; that the draft was protested at an expense of $5 protest fees, which appellee was required to pay. If the correspondence should be found susceptible of a construction other than the liability of appellant to become bound to pay the draft, then appellee alleged that such was relinquished and modified and of no effect, by reason of the fact that at all times previous appellant paid drafts drawn and identical with this draft, forwarded and presented the same way, but for which the draft sued on would not have been paid. It was also alleged the grain company was insolvent and had gone out of business, and that J. O. Rider’s guaranty was of no avail. The appellant bank answered by general denial, and specially that by the undertaking of appellant the drafts drawn by appellee were to be sent to appellant for collection and remittance, with bill of lading attached, and the-same would not be paid if sent through other banks, and that the agreement relied upon by appellee permitted drafts drawn “at sight,” and not drafts drawn “on demand,” and that its undertakings were for the accommodation of appellee and the Texas-Oklahoma Grain Company, and without any consideration; that it advised ap-pellee it would pay drafts on demand when certain conditions were complied with, and would pay such drafts at sight on certain other conditions. The draft in question was drawn on demand, without complying with the conditions required; that these conditions' so required were for the purpose of protecting itself, holding the grain as security for any money it might advance in paying the draft. Appellee knew this fact. The grain for which the draft in suit was given was turned over to the grain company by Rider before the draft was presented to appellant without its knowledge or consent. Trial was had before the court without a jury, and without findings of fact or conclusions of law filed in the case, the trial court rendered a judgment in favor of J. C. Rider, and in favor of appellee bank, against appellant bank, for the sum of $803.35. The case was dismissed against the Texas-Oklahoma Grain Company because of its insolvency. Appellant appeals from this judgment.

The facts show that J. C. Rider bought wheat in Gray county as the agent of the Texas-Oklahoma Grain Company, and that previous to the draft in question had bought and paid for, by drafts of a like kind, 20 cars of wheat. On this draft appellee paid Rider the money, which was for the use and benefit of the grain company. The draft is as follows: “$674.50. Pampa, Texas, July 30, 1910. No. 21. On demand, i>ay to the order of Gray County State Bank, six hundred, seventy four and fifty/100 dollars, with exchange, value received, and charge to account of [Signed] J. C. Rider. To Texas-Oklahoma Grain Co. Vernon, Texas. The Waggoner Banking Company — Customer’s Draft.” This draft was protested August 3, 1910, fees-of protest $5. The appellee indorsed it, and sent it through the Amarillo National Bank to the First National Bank of Ft. Worth, which bank indorsed it and sent it to the Herring National Bank of Vernon, Tex., which bank presented it for payment to the Texas-Oklahoma Grain Company. Payment was refused, and upon refusal it was protested for nonpayment. The evidence of Rider is there was an account attached to the draft, setting out the number of bushels and price. The account does not appear to be made out to any one or by any one. All the places for names are blank. It gives the car No. A. T. 20209, and the number of bushels 783, price 87y% cents. There is an affidavit by J. C. Rider, in which, he swears “that the wheat loaded in car No. 20209, A. T. at Pampa, Texas, July 28, 1910, weighed 46820 lbs.” The bill of lading gives number of car and weight the Texas-Oklahoma Grain Company as the consignee, and destination Vernon, Tex., dated July 29, 1910.

The testimony of the cashier of appellee, Mr. Crawford, is to the effect that he had paid the money out to Rider for the grain company, and that he would not have done so without the telegram and letter from appellant; that he paid to Rider, and received some 15 or 20 drafts from him previous to the one in question, with lite affidavits and bills of lading attached, and sent them in the same way and through the same channels, and that none of them had been refused payment, and no objection had ever been urged to the manner of sending them. He did not know how the previous drafts had been paid; whether appellant or the grain company had paid them. Pie further testified there was no other contract made between appellant and appellee, except such as were contained in the letters. The facts show that J. C. Rider wired the railroad station agent at Vemon, Tex., to release the car of wheat to the grain company. This wire was sent in response to a request from the grain company for a release, on the ground that demurrage was being charged against the car. This wire appears to have been sent on August 8, 1910, when the car was released to the grain company. The agent turned the car of wheat over to the grain company, and that company did not turn it or the proceeds over to appellant bank, but credited J. C. Rider’s account therewith, claiming that he was indebted to it on account of shortage in weight and grades on previous shipments. The grain company was and is insolvent and has suspended business. The draft was not presented to appellant bank, and demand made for payment, until after the car of wheat had been disposed of as above set out.

The vice president of appellant bank testified: When the draft was presented to appellant for payment, it had attached to it only the bill of lading, and that its payment was refused because the wheat tickets and affidavits were not attached, as required by his letter, and because it was not 'sent to appellant for collection and remittance, and because the wheat had been disposed of before it was presented to the bank for payment. This witness further testified that this was the first draft that had been presented to it for payment, and that it had not paid such drafts previously sent, and had no knowledge that such drafts were being paid by the grain company. This witness further explained that in his first letter, “that the drafts were to be sent on our bank with bill of lading attached. The reason I made the second proposition was in reply to the letter from plaintiff attached as Exhibit O, in which it requests that defendant banking company write them about paying drafts drawn on demand. The drafts theretofore having been drawn at sight, it gave time for wheat to come in and be inspected, while when drawn on demand, we did not have any time, but had to pay for the wheat before we could inspect it, and hence we required the tickets and affidavit to be attached to demand drafts, together with the bills of lading so as to protect the bank. The telegram related to sight drafts as per letter from plaintiff July 9, 1910.”

The following telegram and letters were introduced in evidence:

“Vernon, Texas, 7/8/10. To Gray County State Bank, Pampa, Texas. Will pay drafts on Texas Oklahoma Grain Co. with bill lading attached drawn by J. C. Rider have written. Waggoner Banking Co.”
“Vernon, Texas, July 8, 1910. Gray County State Bank, Pampa, Texas — Gentlemen: We to-day sent you telegram in answer to yours of even date as follows: ‘Will pay drafts on Texas-Oklahoma Grain Co. with B/Ij attached drawn by J. C. Rider have written.’ We wish to take up the matter handling these drafts with you and see if we cannot improve on the way we handled them last year. Our suggestion is this, that you send the drafts of this company direct to me for your credit and advise, in other words, open an account with us for the grain season, we will credit your account on receipt of same and allow you the usual two per cent, on your daily balances with us. We suggest this because we are handling other grain accounts in this way and it has proven the most mutually agreeable and profitable plan that we have ever had. However, if you prefer to just send these drafts for collection and remittance, it will be all right, but it works a hardship and so much inconvenience to have them come through the other banks here that we cannot handle them that way, and it also often costs these folks double exchange. Kindly let us hear from you in reference to this point. We think you will be very much pleased with the plan first suggested, it will save you every cent of interest and so much less delay connected with it. Tours very truly, E. P, Hicks. V. P.”
“Gray County State Bank. Pampa, Texas, July 8, 1910. Waggoner Banking Co., Vernon, Texas — -Gentlemen: Will you pay J. C. Rider’s drafts drawn on the Texas-Oklahoma Grain Co. with bill of lading attached, these drafts will be for grain and drawn at sight. This is to confirm your wire of the 8th inst. Tours truly, J. T. Crawford, Cashier.”
“Gray County State Bank. Pampa, Texas, July 14, 1910. Texas-Oklahoma Grain Co., Vernon, Texas — Gentlemen: We have been paying J. C. Rider’s checks for grain and accepting sight drafts on you for him; after this we will have to ask that he make drafts payable on demand, as we will want to handle them as cash items, this was the arrangement made by your Mr. Bird when he was here. Please have your bank write us that they will take care of drafts drawn on demand. Wire us if this is not satisfactory. Yours truly, J. T. Crawford, Jr., Cashier.”
“July 16, 1910. Gray County State Bank, Pampa, Texas — ‘Gentlemen: With reference to paying drafts drawn for wheat by J. C. Rider on Texas-Oklahoma Grain Company, will say that all of these drafts that have B/B wheat tickets and affidavits attached, and that the amount drawn for in draft corresponds with the number of bushels of wheat represented by such tickets B/B and affidavits at the prices authorized by Texas-Oklahoma Grain, Company, will be promptly paid for here and there will not be any trouble about this whatever where these conditions are complied with. I do not see how that we could make any other statement in connection with the paying of these drafts, that should be more satisfactory to you than this. We shall however be glad to hear from you further if you think necessary on any point in connection with the matter. Xours very truly, E. P. Hicks, V. P.”
“Pampa, Texas, Aug. 4, 1910. Texas-Oklahoma Grain Co., Vernon, Texas- — Gentlemen: Replying to yours of the 3rd inst. I wired the Herring Nat’l Bank upon receipt of your message to Rider waiving protest of the $674.50 item. You say that it works a hardship on you to have these drafts come through any bank by the Waggoner Banking Company they have all been marked through that bank and if you are to accept them and let your bank take them up when they clear with the other banks I do not think you would have to pay any exchange on them or that it would make it any harder on you than if they were sent direct if they were sent as a cash item, we are compelled to handle these drafts as any other cash item and the banks we sent to use them as such. On July the 12th we sent one of Rider’s drafts that he had marked without exchange direct to the Waggoner Banking Co. and they charged us $2.20 exchange. This was draft No. 2 for $893.25. We are having a rainy spell and all the threshing has stopped here and practically no wheat coming so I hope you will get caught up and that our dealing go along as before, which has been very satisfactory up to now, with us. Yours truly, J. T. Crawford, Ca'shier.”

A bill payable on demand is due, and action thereon may be brought, at once. Henry v. Roe, 83 Tex. 446, 18 S. W. 806; Paine v. R. R. Co., 118 U.S. 152, 6 Sup. Ct. 1019, 30 L. Ed. 193. Under the law merchant such paper is not entitled to three days of grace. Our Supreme Court held our statutes do not change that rule. Brown v. Chancellor, 61 Tex. 437. The bill is payable on the day of its date, or within a reasonable time. It is held in this state, and given as the rule by text-writers, when such instruments are so payable, it is not necessary to present them for acceptance (Carson v. Russell, 26 Tex. 453; 1 Dan. Neg. Inst., § 454); but, if payable at sight, the law requires it to be presented for acceptance before it can be enforced against parties collaterally liable (1 Dan. Neg. Inst. § 453). Three days of grace are allowed upon bills payable at sight,.this is the rule recognized by a majority of our courts. 1 Dan. on Neg. Inst. §§ 617-618. A bill payable after sight means after acceptance or protest for nonacceptance, • and not from a mere private exhibition to the drawee. 1 Dan. Neg. Inst. § 619.

There can be no question from the telegram of July 8th, and the letter of that date from appellant to appellee and the letter from appellee to appellant of the same date, that the drafts should be drawn at sight. Appellee clearly indicates that was its understanding by its letter of July 14th to the grain company, and in that letter requested the privilege of drawing payable on demand. We think the draft as drawn, the understanding of all parties as disclosed by the testimony, as well as the letters in evidence, made a contract of guaranty by appellant. .The grain company was the primary debtor; the wheat was bought by and for that company; the money was advanced to that company’s agent by appellee upon a draft drawn on the grain company in favor of appellee. The entire credit was not given to the grain company, but was also given upon the agreement by appellee that the drafts would be paid. From July 8th, until July 16th, the appellant guaranteed the drafts if drawn at sight with bill of lading attached, and if sent to appellant for “collection and remittance,” and if sent for collection through any other bank in the town, appellant could not handle the drafts sent in that way. This was the condition of appellant’s guaranty contract, and a compliance therewith was required in order to render it liable. On the 16th of July, the parties agreed to change the form of the drafts to one “on demand,” but appellant annexed as a further condition that “these drafts that have B/L, weight tickets and affidavit attached and that the amount be drawn for in the draft corresponds with the bushels of wheat represented by such tickets B/B and affidavits at the price authorized by the Texas-Oklahoma Grain Company will be promptly paid for here and there will not be any trouble about this whatever .when these conditions are complied with.” These last letters we do not think abrogate the contract as evidenced by the original letters, but change the contract from sight to demand drafts, with additional papers attached to the drafts. The appellee bank bases its right of recovery upon the original letter of appellant and its telegram of July 8th. There can be no question that, as a condition to appellant's liability, that contract required the draft and bill of lading to be sent to it for its protection. This was required, doubtless, to prevent the very thing that did occur in this case. Had ap-pellee sent this draft to appellant, the car of wheat could and would have been held and applied to the payment of the draft, and neither party would have lost anything.

The appellee must have understood that it was the purpose of appellants in having the draft and bill of lading sent to it for collection that such requirement was to protect itself on its guaranty of the draft. If the grain company could not pay it, then under the transfer of the bill of lading, appellant could sell the wheat and reimburse itself. This was a condition precedent to its liability on the guaranty. The failure of the appellant to comply with the terms of the contract in sending the draft to other bankers, with bills of lading, who presented it to the grain company for payment, and in not calling appellant’s attention to the same, gave the grain company time to dispose of the wheat. After the evil had been done, the draft was presented to appellant for payment. It is then claimed that the tickets, bills of lading, and affidavits were attached. This was the first time appellant’s attention was called to the draft. This certainly was not a compliance with either the first or second letters. This was not an unconditional guaranty, or a letter of credit, but the conditions upon which appellant would guarantee the payment of the drafts were specifically stated and set out, whether at sight or on demand, and in both instances must be collected and remitted through appellant bank. If appellant had intended to guarantee drafts unconditionally, it was useless to require the identity of the wheat by tickets and affidavit, and the conveyance by the bill of lading attached. In violating this contract appellee has lost the wheat as a security for the debt, and we do not think, after such loss, should then present the draft with the required papers attached, and claim this to be a compliance with the terms of the contract. The cashier of appellee admits he understood that appellant required the bill of lading as a security to it, and that such was customary with banks. This was not a contract on the part of appellant to accept a draft drawn on it, and in that is unlike the case of Henrietta National Bank v. Bank, 80 Tex. 648, 16 S. W. 321, 26 Am. St. Rep. 773, cited by appellee. It is only a guaranty that the drafts will be paid when drawn on the grain company, but to this was annexed a condition with which appellee should comply.

It is urged that the draft was forwarded in the usual course of business through appellee’s correspondence. Appellant did not stipulate that the draft should be so forwarded, but expressly .stated that it could not handle the drafts'unless sent direct to it for collection and remittance. That was part of the guaranty. The liability of a guarantor cannot be extended by implication beyond the actual terms of his engagement. The ease must be brought strictly within the terms of the guaranty. Smith v. Montgomery, 3 Tex. 199; Lockwood v. Bronson, 53 Tex. 523; Irion v. Eskrigg, 30 Tex. Oiv. App. 466, 70 S. W. 779; Lane v. Scott, 57 Tex. 367; Gardner v. Martin, 76 Tex. 25,13 S. W. 39. It is contended that appellant waived ' the manner of drawing the drafts and sending the same for payment. The evidence simply shows that appellee drew this draft with attached papers as it had others, and the same had been paid theretofore without objection. These drafts were drawn on the grain company, which had theretofore paid the same. One or two were sent to appellant, and the bills of lading were attached, and the grain company paid them. As to others, it knew nothing of them. We do not think there is any testimony showing waiver of the condition of the contract by appellant bank. So long as appellee chose to rely on the grain company, and not appellant’s contract of guaranty, appellant had no right to object. It cannot be charged with waiving the terms of its contract when it had not been called upon to do so or to act.

We do not think the facts in this ease made a case against appellant under the contract alleged and proven, and the trial court should have rendered judgment for appellant. This court will render judgment that appellee take nothing by its suit against appellant, and that appellant recover its costs in this court and in the court below.

Reversed and rendered.

On Motion for Rehearing.

The appellee asserts in its motion for rehearing that the draft in question was presented for payment July 28, 1910. If it was presented on that date, it was before it was ever drawn. It is dated July 30, 1910. It is again asserted that it was drawn on the appellant bank. This is based on the fact that it is addressed to Texas-Oklahoma Grain Co., Vernon, Texas, signed, “J. C. Rider,” and beneath this is the following: “The Waggoner Banking Company, Customer’s Draft.” This draft was protested August 3, 1910. There is not the slightest evidence that we can find that it was ever presented to appellant bank for payment before protest ; but the testimony is without controversy that payment was not demanded until after protest, and not until the grain company had obtained -the wheat from the railroad company by virtue of a wire from Rider. The only circumstance that can in any way show appellant knew about this draft before protest and the disposition of the wheat is that the grain company and the Waggoner-Banking Company were doing business in the same town. The appellee says there is no-evidence that it accepted the conditions in the letter of July 8th. It pleaded the telegram and the letter as the contract upon which- it relied for recovery and introduced both in evidence to prove its case.

It is expressly stated in the letter that, to send drafts ■ through other banks, it, appellant, could not handle them that way. Crawford, appellee’s cashier, says that if appellant was obligated to pay the draft in question, it was by virtue of these letters. Crawford swears that about the 9th or 10th of August, 1910, he sent the draft to appellant. This was after the draft had been protested, and after the railroad company had released the wheat to the grain company on the telegram of Eider. When appellant got the draft and bill of lading, the railroad had parted with the possession of the wheat on the direction of the consignor to the consignee: This delay and the failure of appel-lee to comply with the conditions of appellant’s guaranty defeated appellant’s undertaking. It is insisted that Eider had drawn other drafts which had been paid. Crawford again testified: “I do not know whether or not any of those drafts I had drawn prior to that had been sent by me direct to the Waggoner Banking Co. I do not know but what they had all been presented down there by the Herring 'National Bank, or some other banks, to the Texas-Oklaboma Grain Company, and they paid it. All I know is I got the money. All I know is I drew the drafts and sent them through the Amarillo or some other correspondent, and they would go off and the money would come back to me.” Mr. Hicks, the vice president of appellant, testified that former drafts were not sent to his bank for collection, or to present for payment to the grain company. This would not estop appellant from setting up and relying on the terms of its guaranty as evidenced by the letters. We think the ap-pellee’s own testimony shows the scale tickets were not attached to the draft in question in accordance with its letter of July 16, 1910. Appellee recalled J. C. Eider to prove: “Prior to the time of the drawing of this draft in controversy, I had never attached scale tickets to any drafts. It had not been required. It was called for at one time, but I cannot remember the time. It was after this draft was drawn.” He further testified there was no public weigher at Pampa; there were several scales in town, and it was left optional with the farmer who should do the weighing. “They issued tickets for it.” Appellant’s testimony is positive that none of the things, except the bill of lading, were attached to the draft when sent to it. As heretofore set out, there were no scale tickets attached, so we think neither of the letters were complied with as to the conditions. Under the authorities cited in the original opinion, the terms of a contract of guaranty must be strictly performed. It is a hardship on appellee bank to lose the money, and so it would be for appellant to pay it. Appel-lee has seen proper to follow its own course, regardless of the stipulations and requirements by appellant that in sending and drawing the draft it should be done in a certain way, and, having taken the risk, it should abide the consequences.

The motion for rehearing is overruled.


source: Caselaw Access Project

author: ■ DAVIDSON, J.

license: Public Domain

text:
    McELWEE v. STATE.
    (Court of Criminal Appeals of Texas.
    April 8, 1914.)
    1. Criminal Law (§ 730) — Trial — Argument of Prosecuting Attorney.
    Where, in a prosecution for violating the local option law, defendant claimed that he obtained the whisky from C. as prosecutor’s agent, a statement, ma.de by the prosecuting attorney in argument, that the fate of C. rested on the jury’s verdict, and, if they found “this negro [defendant] not guilty, the attorney would have C. in jail just as soon as the verdict was returned, was improper, but was cured by an instruction directing the jury not to consider it.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 1693; Dec. Dig. § 730.]
    2. Intoxicating Liquors (§ 239) —-Trial — Conflicting and Contradictory Instructions.
    Defendant, in a prosecution for violating the local option law by selling certain whisky to S. and delivering it to his son, claimed that he merely acted as the agent of S. to procure the whisky from C. The court especia,Uj charged, at defendant’s request, that if defendant, in compliance with S.’s request to get him some whisky, procured the same, and defendant had no interest in the whisky, but merely acted as the agent of S., he was not guilty, but in the main charge declared that if money was paid to defendant by S., and the whisky was delivered to his son by defendant, that would constitute a sale to the son, and the jury should find defendant guilty, unless they had a. reasonable doubt concerning the same, in which case they should acquit. Held, that the instructions were conflicting and contradictory, and that the charge in effect withdrew defendant’s defense of agency from the jury.
    [Ed. Note. — Eor other cases, see Intoxicating Liquors, Cent. Dig. §§ 331-347; Dee. Dig. §• 239.]
    3. Intoxicating Liquors (§ 167) — Wrongful Sale — Indictment—Variance.
    Proof that S. approached defendant and asked him if he knew where he (S.) could get a quart of whisky, that defendant replied that he thought he did, whereupon S. gave defendant $1.50 and told him to deliver the whisky to S.’s son, which he subsequently did, showed a sale-of whisky to S., and was therefore insufficient to support an indictment charging a sale to the son.
    [Ed. Note. — Eor other cases, see Intoxicating Liquors, Cent. Dig. §§ 182, 183; Dec. Dig. §■ 167.]
    Appeal from Nacogdoches County Court;. Geo. E. Ingraham, Judge.
    Will McElwee was convicted of violating-the local option law, and be appeals.
    Ee-versed and remanded.
    V. E. Middlebrook, of Nacogdoches, 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-

   ■ DAVIDSON, J.

Appellant was convicted of violating the local option law.

Without dispute or question this record discloses that Jabez Scott approached appellant and ashed him if he knew where he (Scott) could get a quart of whisky. Appellant said he thought he did. Scott asked appellant how much it would cost, and appellant said, “$1.50.” He then asked appellant how long it would take him to get the whisky. He said, “About 20 or 25 minutes.” Scott did not have time to wait, so he gave appellant the $1.50 and told him that his son, Wm. Scott, would wait and get the whisky, and he instructed appellant to deliver the whisky, when purchased, to his son,-Wm. Scott. Jabez Scott so testifies for the state, as does Wm. Scott. It is further testified that Wm. Scott was present, and heard all the conversation, and waited for the whisky, and that appellant brought the whisky to him for his father. These facts are undisputed. Appellant testifies to the same facts, and further testifies he had no interest in the whisky, nor did he get any part of the $1.50. He demurred to giving the name of the man from whom he purchased the whisky for Scott, but, when being pressed for it, he gave the name of John Crawford. He says that Randolph Smith showed him the man from whom he got the whisky. Smith is dead; he was killed during Christmas week. Appellant further testified: “The man I got the whisky from is a white man. I know him now, but I did not know his name when I got the whisky. I am afraid to tell his name. I am scared to tell it; but, if I have to, I have to. It was Mr. John Crawford.” John Crawford testified that he did not sell appellant the whisky, and that he never delivered any whisky to appellant. This is, in substance, the case.

The only disputed question seems to arise on' the contradiction in the testimony between appellant and Crawford. The evidence, then, seems to be clear that Jabez Scott gave appellant $1.50 with which to buy him some whisky; that, not having time to wait for the whisky, Scott instructed appellant to turn it over to his son, which was done. Appellant claims to have bought the whisky from Crawford as the agent of Scott, and that he (appellant) did not sell any whisky, and had no interest in it. This was denied by Crawford. The sale was alleged to have been made to Wm. Scott, and not to his father, Jabez Scott. The prosecuting attorney uses this language in his argument: “On your verdict rests the fate of John Crawford. If you find this negro not guilty, I will have John Crawford in jail just as soon as you return your verdict.” The court instructed the jury not to consider this argument, as it was improper. The court was correct in this. The argument should not have been used; but, in view of the instructions, it may not be sufficient to justify a reversal on that ground.

At the request of the county attorney the following instruction was given: “You are instructed that if you find from the evidence that the money was paid to Will Me-Elwee by Jabez Scott, and the delivery was made to William Scott, this would in terms of law be a sale to William Scott, and you will find the defendant guilty, and assess his punishment as stated in the main charge; and if you have a reasonable doubt of the' same you will acquit the defendant.” Proper exception was reserved to this, on the ground that it was on the weight of the evidence, and virtually an instruction to find the appellant guilty, and under the undisputed facts the jury. could do only one thing under this charge, and that was to find appellant guilty, and that it was also a direct contradiction of the defendant’s special charge on agency, which was given by the court, and took the proposition of agency entirely away from the jury. This hill of exceptions was approved by the trial judge, with the explanation that the two special charges mentioned were about different phases of the case, and not contradictory, as he understood them. The special charge given at request of appellant is as follows: “You are further instructed that if Will MeElwee was asked by Jabez Scott if he could get him some whisky, and the defendant in compliance with the request did get him the whisky, and the defendant had no interest in the whisky, but was acting as the agent of Jabez Scott, he is not guilty, and you will so find, if you believe he so got the whisky; or if you have a reasonable doubt as tp whether he so got the whisky for Jabez Scott, you will find him not guilty.” We are of the opinion that the two charges, the one asked by the county attorney and the one given at request of defendant, are conflicting and contradictory; and we are further of the opinion that the court’s charge was on the weight of the evidence, and assumes a most material fact in the case against the defendant, and ignores appellant’s defense in the special charge given at the request of the county attorney. If appellant bought the whisky for Jabez Scott, and did not sell it or have any interest in the sale, he would be acting as agent, and not guilty. The state met this testimony with that of Crawford, which raised the issue sharply as to sale. Under the county attorney’s instruction, appellant would he guilty if Jabez Scott paid MeElwee, appellant, the money, and the whisky was delivered to Wm. Scott, his son, whether appellant was the agent or not. If he was the agent of Jabez Scott, he would not be guilty.

This brings up another question which is- directly an issue in the case, and it is this: The charge against appellant was for selling intoxicating liquors to Wm. Scott. The facts show if he sold it, it was to Jabez Scott, and not Wm. Scott. When the trade was made, there was present Jabez Scott and his son, Wm. Scott, and appellant Wm. Scott knew all about the facts of the case, and. had no interest in it at all, except to receive the whisky from appellant for his father. His father had paid the money in advance for the whisky. The sale, therefore, would be to Jabez Scott, and not to Wm. Scott’. The facts are pointed and positive. There is no contradiction of the fact that appellant, if he was guilty at all, was guilty of selling to Jabez Scott, and not Wm. Scott. The trade was made and the money paid in advance, and Wm. Scott remained, because his father did not have time to do so, to get the whisky in ease appellant should deliver it, not for Wm. Scott, but for Jabez Scott.

For the reasons indicated, the judgment is reversed, and the cause remanded.


author: HARPER, J.

text:
    COLE v. STATE.
    (No. 3068.)
    (Court of Criminal Appeals of Texas.
    April 8, 1914.)
    1. Criminal Law (§§ 665, 1153) — Placing Witnesses ttndeb Rule — Discretion of Court — Review.
    The action of the court in placing the witnesses under the rule in charge of an officer, who will be a witness for the state, and in permitting the district attorney to interview the witnesses one by one in the presence of the officer, is within the discretion of the trial court, and will not be disturbed unless abused.
    LEd. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1549-1566%,. 3061-3066; Dec. Dig. §§ 665, 1153.]
    2. Witnesses (§ 40) — Competency—Age or Witness.
    A girl 10 years old, who shows that she has sufíici'eút intellect to give her testimony, and who knows that she will be imprisoned for testifying falsely, is competent to testify.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 97, 98; Dec. Dig. § 40.]
    3. Homicide (§ 300) — Sele-Deeense — Evidence.
    Where accused showed that a wordy altercation occurred when decedent started at him with a drawn hatchet, and accused then fled into the house and secured his gun, and decedent, on accused stepping out, again started towards him with the hatchet, and accused then fired, the issue of self-defense was raised.
    [Ed. Note. — For other eases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.*]
    4. Homicide (§ 250) — Murder—Evidence.
    Evidence 7letd to support a verdict of murder.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 515-517; Dec. Dig. § 250.]
    5. Criminal Law (§ 942) —New Trial — Newly Discovered Evidence — Impeaching Testimony.
    A new trial on the ground of newly discovered evidence, which will only impeach a witness for the state, is properly denied.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2316, 2331, 2332; Dec. Dig. § 942.]
    6. Criminal Law (§ 665) — Evidence—Placing Witness under Rule.
    That the court placed the witnesses under the rule in charge of an officer who would testir fy for the state, and that the district attorney talked with each of the witnesses in the presence of the officer, did not render the testimony of the witnesses inadmissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1549-1566% ; Dec. Dig. § 665.]
    7. Criminal Law (§ 991) — Indeterminate Sentence Law — Imprisonment.
    Under the indeterminate sentence law, the punishment of one convicted of murder, fixed at 17 years in the penitentiary, must be modified so as to provide for confinement therein for not less than 5 years nor more than 17 years.
    [Ed. Note. — For other cases, see Criminal Law^ Cent. Dig. §§ 2518, 2525, 2528; Dec. Dig. 991

    Appeal from District Court, Milam County; J. C. Scott, Judge;
    Will Cole was convicted of murder, and he appeals.
    Sentence amended, and judgment affirmed.
    Lyles & Lyles, of Cameron, for appellant. O. 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 murder, and his punishment assessed at 17 years’ confinement in the penitentiary.

Appellant shows that, when the case was called for trial, the district attorney asked! leave of the court to talk with the witnesses, which was by the court granted. When the district attorney started to do so, appellant insisted that the witnesses be sworn and placed under the rule, and they instructed not to talk to each other in regard to the case, and not to talk to any one in regard to the case other than the attorneys engaged in the trial of the ease. The court called the witnesses in and complied with this request of the defendant’s attorney, and further instructed them not to talk with the attorneys about the case unless in the presence of an officer, -and sent the witnesses out under the rule in charge of an officer. Dan Todd is constable of precinct No. 3 in Milam county, the precinct in which the offense is alleged to have occurred, and was the first officer to arrive at the scene of the homicide, and was the officer who made the arrest. The district attorney asked him to call the witnesses he desired to talk with, and talked with the witnesses in the presence of this officer of Milam county. Appellant objected to the district attorney being permitted to talk with the witnesses in the presence of Constable Todd; he being also a witness in the ease. This is a matter within the sound discretion of the court, and the bills state no facts tending to show that the court abused his discretion in allowing this officer to call the witnesses for the state’s counsel, and be present when the state’s counsel was talking with them, one at a time, as the court had instructed the witnesses not to talk even with counsel about the case, except in the presence of an officer. The mere fact that an officer, in the discharge of his duties, goes to the scene of a homicide and makes •an arrest, and is called on to testify to what he there saw, to detail the facts as it appeared to him, would not prevent the court placing such an officer in charge of the witnesses placed, under rule, nor would it be error to permit the district attorney to talk with the witnesses, one at a time, in the presence of this officer. These are matters in the discretion of the trial judge, and some injury, some abuse of discretion in the premises, must be shown, otherwise such matters present nothing for review. McMillan v. State, 7 Tex. App. 142; Williams v. State, 37 Tex. Cr. R. 147, 38 S. W. 999; Brite v. State, 43 S. W. 342.

In another bill it is insisted that the court erred in permitting the witness Lethia Adams, a girl 10 years old, to testify. Her testimony in this record discloses that she has sufficient intellect to intelligently give her testimony and to relate the transaction as she saw it. Prom her evidence it also appears that, she knew 'that punishment awaited her if she swore falsely, and that she could be incarcerated in prison. Williams v. State, 12 Tex. App. 127; Oxshear v. State, 38 Tex. Cr. R. 499, 43 S. W. 335; and eases cited in sections 951 and 952, White’s Ann. Code of Criminal Procedure.

While the court submitted manslaughter, we do not think the evidence raises that issue. The evidence for defendant would show that a wordy altercation occurred when deceased started at him with a drawn hatchet, when he fled into the house, secured his gun, stepped out of the house, when deceased again started towards him with his hatchet, when he fired, and deceased turned and ran. If this is true, this would be self-defense, and is submitted in a way not complained of by appellant. The state’s case is that deceased started to his work, when words ensued; appellant picked up a single-tree, when deceased picked up a stick; appellant then ran in the house after his gun, when deceased fled from the scene; that, after getting his gun, appellant pursued deceased some 75 yards, shooting him while deceased was trying to get away. Consequently the evidence amply supports the verdict finding appellant guilty of murder.

The alleged newly discovered evidence would only tend to impeach the witness Maggie Smith, and presents no good ground for a new trial. Barber v. State, 35 Tex. Cr. R. 70, 31 S. W. 649; Franklin v. State, 34 Tex. Cr. R. 203, 29 S. W. 1088; Matkins v. State, 33 Tex. Cr. R. 605, 28 S. W. 536; section 1149, White’s Ann. Proc.

There was no error in refusing to strike out the testimony of Mattie Smith and Janie Jones. Their evidence was upon a material issue in the case, and the fact that Constable Todd was present, if he was, when the district attorney talked with each of them, would not render their testimony inadmissible.

Under the indeterminate sentence law, the sentence should have been that defendant be confined in the penitentiary for a period of time not less than 5 years nor more, than 17 years, and the sentence is here corrected and reformed in such respect, and sentence will be so amended, and judgment entered accordingly.

The judgment is affirmed.


author: HABPEB, J.

text:
    SHAW v. STATE.
    (No. 3061.)
    (Court of Criminal Appeals of Texas.
    March 25, 1914.
    Rehearing Denied April 22, 1914.)
    1. CRIMINAL Law (§ 556)—Written Statement-Admission of Part — Exculpatory Part—Disproof.
    Where, in a prosecution for abortion, the state offered a part of defendant’s statement introduced before the grand jury, in which she' stated that prosecutrix came to her house with R.; that defendant pushed her finger up in prosecutrix, and pushed up her womb; that R. stayed on the porch while she did that; that she did not know R., and had never seen the girl before; that she pushed her womb up as far as she could, but gave her no medicine— such testimony was not exculpatory so as to require the state to disprove the same, that the jury might not be required to accept it as true.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 918, 1258; Dec. Dig. § 556.]
    2. Abortion (§ 11)—Evidence—Identifica-tion.
    Where, in a prosecution for abortion, pros-ecutrix did not identify defendant as the woman to whom she was -carried, but did testify that R. carried her to a woman named Kate or Kit Shaw, which was the name of defendant, who admitted that R. brought prosecutrix to see her, that was sufficient identification to justify the admission of prosecutrix’s testimony.
    [Ed. Note.—For other cases, see Abortion, Cent. Dig'. § 22; Dec. Dig. § 11.]
    3. Abortion (§ 9)—Evidence.
    In a prosecution for abortion, evidence of prosecutrix that R., who took her to defendant, and who made the arrangements to have the operation performed, was the author of her ruin and the father of her child, was admissible.
    [Ed. Note.—For other cases, see Abortion, Cent. Dig. §§ 17-20; Dec. Dig. § 9.]
    4. Criminal Law (§ 661)—Evidence—Duty to Introduce Entire Statement.
    The state is not required to introduce all of defendant’s statement'or testimony introduced before the grand jury, but may introduce a portion thereof, and leave to defendant the introduction of the remainder.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 758, 1606; Dec. Dig. § 661.]
    5. Criminal Law (§ 507) — Accomplice — Abortion—Victim.
    That prosecutrix willingly submitted to an abortion performed on her did not render her an accomplice.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1082-1096; Dec. Dig. § 507.]
    6. Abortion (§ 1)—Cause—“Instrument.”
    The fingers of defendant inserted into the privates and womb of a pregnant female constitute an “instrument” within' the Code provisions making it an offense for any person to cause the abortion of a pregnant female by means of an instrument, etc.
    [Ed. Note.—Eor other cases, see Abortion, Gent. Dig. §§ 1-5; Dec. Dig. § 1.

    Eor other definitions, see Words and Phrases, vol. 4, pp. 3665-3668.]
    Appeal from District Court, Gollin County; F. E. Wilcox, Special Judge.
    Kate Shaw was convicted of having produced an abortion, and she appeals.
    Affirmed.
    G: B. Smith and Beverly S. Dudley, both of McKinney, 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 oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes'

   HABPEB, J.

Appellant was charged with, and convicted of having produced, an abortion on one Cassie Gaines.

That Cassie Gaines gave premature birth to a child is proven conclusively. She testified that Sam Bhyon, her cousin, was the father of her child, and that Sam Bhyon carried her at night to the home of a woman in McKinney, and to whom he introduced her as Kate or Kit Shaw; that Bhyon made the arrangements with the woman, and this woman'caused her to lay down, and the woman then inserted her fingers into her privates, manipulating with her fingers for some minutes; that she then was carried home by Bhyon. A few nights later Bhyon again carried the witness to this woman, who carried her into the kitchen, and when she had lain down the woman inserted some kind of an instrument into her private parts, the manipulation of which was very painful and caused her to bleed. The child was aborted a few days after this. On the trial she could not identify appellant as the woman, saying it was at night and dark on both occasions when she was carried to see the woman.

The county attorney then introduced a portion of appellant’s statement or testimony adduced before the grand jury. That portion introduced by the state reads as follows: “Cassie Gaines came to my house with Sam Bhyon. I put my finger up in her and pushed up her womb. Sam Bhyon stayed on the porch while I did this. I did not know Sam Bhyon when he came there, but he told me his name was Sam Bhyon. I had never seen the girl before and did not know her. I pushed her womb up as far as I could. I did not give her any medicine.” This was all of the portion of her testimony introduced by the state, and it is seen there is nothing exculpatory in that portion of the testimony; therefore it was not necessary to charge that the state must disprove the exculpatory part of the testimony, or the jury would take it as true. The exculpatory part of the statement was introduced by defendant, and therefore called for no such charge.

There was no error in admitting the testimony of Cassie Gaines, although she did not identify appellant as the woman to whom she was carried- She testified that Sam Bhyon carried her to a woman named Kate or Kit Shaw. This appellant admits; that Sam Bhyon brought Cassie Gaines to see her. Thus the identification was made sufficient to admit the testimony of Cassie Gaines.

Neither was there error in permitting her to state that Sam Bhyon, who carried her to appellant and made the arrangements to have the operation performed, was the author of her ruin and the father of her child.

When the state offered only a portion of appellant’s statement or testimony adduced before the grand jury, the defendant objected on the ground that, if the state introduced any portion of it, it should be compelled to introduce all she said on this occasion. There was no error in permitting the state to introduce only such portions of this testimony as it desired; the defendant being permitted to introduce the remainder of it when she offered to do so. It is like the examination of a witness: One can ask the witness such questions and adduce such testimony as he desires; if there are other facts in the breast of the witness, connected with the same, that the opposing counsel desires, he should be, and in this instance was,’ permitted to adduce it.

Because Cassie Gaines willingly submitted to having the operation performed on her, it did not constitute her an accomplice under the law of this state. This has been so often decided we deem it unnecessary to discuss that feature of the case. Wellingham v. State, 33 Tex. Cr. R. 99, 25 S. W. 424; Miller v. State, 37 Tex. Cr. R. 575, 40 S. W. 313; Hunter v. State, 38 Tex. Cr. R. 61, 41 S. W. 602; Watson v. State, 9 Tex. App. 244; Wandell v. State, 25 S. W. 27; Link v. State, 164 S. W. 987, recently decided.

There was • no evidence calling for a charge that if appellant did produce the abortion by her acts, that if she did not use an “instrument” in so doing, she would not be guilty. The fingers inserted into the privates and womb of a female would be an instrument within the meaning of the Code defining this offense. In addition to this, it is shown that on the second visit, in addition to the fingers, an instrument was used by appellant.

The court instructed the jury in defining the offense: “Our statute provides that, if any one shall designedly use toward a pregnant woman any violence internally applied and shall thereby procure an abortion, he shall be punished by confinement in the penitentiary not less than two nor more than five years; if it be done without her consent the punishment shall be doubled.” The court in submitting tlie issues to tbe jury did not authorize double punishment, but only that if guilty her punishment be assessed at not less than two nor more than five years in the penitentiary. The jury assessed her punishment at only two years. Under such circumstances, the matter complained .of presents no error.

The judgment is affirmed.


text:
    RANSOM v. STATE.
    (Court of Criminal Appeals of Texas.
    April 8, 1914.)
    1. Weapons (§ 11) — Carrying Weapons — Persons Exempted — Peace Oeeicers.
    Pen. Code 1911, art. 476, 'providing that the preceding article, forbidding the carrying of a pistol, shall not apply to a peace officer, does not authorize a deputy sheriff to carry a pistol when outside the county of his appointment and not on official business.
    [Ed. Note. — For other cases, see Weapons, Cent. Dig. §§ 10-14; Dec. Dig. § 11.]
    2. Weapons (§ 11) — Carrying Weapons — Persons Exempted — Peace Oeeicers.
    Under Rev. St. 1911, art. 7125, authorizing sheriffs to appoint one deputy for each justice precinct in addition to the precinct where the county site is situated, where a sheriff appointed two deputies in such a precinct, one of whom was the active deputy, who made arrests and served process, the appointment of the other was illegal, and he acquired no right by virtue of such appointment to carry a pistol, under Pen. Code 1911, art. 476, authorizing peace officers to carry a pistol.
    [Ed. Note. — For other cases, see Weapons, Cent. Dig. §§ 10-14; Dec. Dig. § 11.] ■
    3. Criminad Law (§ 32) — Defenses—Ignorance oe Law.
    A deputy sheriff’s belief that he had a right to carry a pistol in a county other than that of his appointment was a mistake of law, and not of fact, and did not relieve him from criminal liability.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 37; Dec. Dig. § 32.]
    4. Weapons (§ 17) — Evidence—Relevancy.
    On a trial for carrying a pistol, evidence as to an altercation between accused, after he had given bail for his appearance and left the jail, and a person who followed him to get him to return to attend to some minor matter, should have been excluded, and its admission is ground for reversal, where the jury, in addition to a fine, assessed the punishment at imprisonment in the county jaü for 60 days.
    [Ed. Note. — For other cases, see Weapons, Cent. Dig. §§ 20, 22-33; Dec. Dig. § 17.]
    Appeal from Harris County Court at Law; Clark C. Wren, Judge.
    Henry L. Ransom was convicted of unlawfully carrying a pistol, and be appeals.
    Reversed and remanded.
    Lane, Wolters & Storey, of Houston, 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 convicted of unlawfully carrying a pistol, and his punishment assessed at a fine of $100 and 60 days’ imprisonment in the county jail.

The first proposition presented for our consideration is the proper construction of Pen. Code, art. 476, which provides that the article of the statute which prohibits the carrying of a pistol shall not apply to a person in actual service as a-militiaman, nor to a peace officer or a policeman, or a person summoned to his aid, nor to a revenue or other civil officer engaged in the discharge of his official duty.

Appellant introduced in evidence the appointment made by M. L. Wooley, sheriff of Ft. Bend county, Tex., wherein he on April 28,1913, appointed appellant a deputy sheriff of Ft. Bend county. Appellant was charged with carrying the pistol in Harris county in October, 1913, and testified: “On the occasion when I came over here, I did not come on any official business. I came on process issued out of the criminal district court of Harris county. I was subpoenaed as a witness. I did not come over here to serve any process. Up to that time I had never served any process for the sheriff of Ft Bend county. He had never sent me any at all. I never received any compensation from the sheriff of Ft. Bend county. I went over there and formally took the oath of office. I did not make bond, because the sheriff’s bond was my bond. The sheriff’s bond is good for his officers, his deputies. He did not require me to make a bond. I did not make a bond. I have already stated that I did not serve any process for the sheriff of. Ft. Bend county. I never received any compensation for my services. I would have received compensation if I had served papers, I guess; never made any arrest over there; never attempted to make any arrest here since I was a deputy sheriff of Ft. Bend county. Over there I have gone with my brother on two or three occasions to make arrests; never made any arrests. We were after a negro for some time for murder, and we had information he was at a house there, and we went there and found he was not there. The sheriff instructed me to assist my brother; that if my brother needed any assistance he would call on me. I have already told you that X did not make any arrests. Mr. Wooley is the sheriff over there. I don’t know how many deputies he has in my district. He has one other deputy besides myself in my precinct. Myself and brother are deputies in that end of the county, up in there in that precinct. That is not the justice of the peace precinct in which the county seat is located.”

It is thus seen that appellant was not in Harris county on official business, and admits he had the pistol on his person in Harris county. The case of Clayton v. State, 21 Tex. App. 343, 17 S. W. 261, supports his contention that a legally appointed deputy sheriff has a right to carry a pistol anywhere in the state, whether on official business or not; but we do not think this a proper construction of article 476, but believe the correct construction is announced in the ease of Ray y. State, 44 Tex. Cr. R. 158, 70 S. W. 23, wherein tile court held: “The construction placed on said article is that the statute places no qualification on the clause with reference to peace officers, but authorizes every peace officer or policeman everywhere and at all times to carry a pistol. We do not believe this is a proper interpretation of the statute. A person may be a peace officer in one section of the state and not in another, but is simply a local peace officer; and while in his bailiwick he is a peace officer, but when he leaves there and goes to some other section he cannot perform the functions of his office, and he has no more authority than any other private citizen. Of course, when he goes outside of his immediate jurisdiction to perform some duty in some other part or section, which he is authorized under the law to do, his official character remains with him; but not so in the absence of such official duty.” It is true that in this latter ease it is said that the Clayton Case does not support the contention made; but it is evident that the court was mistaken, for it does support the contention made in the Bay Case and in this case. But as hereinbefore stated we do not think it a correct construction of the statute. Appellant, nor the sheriff who appointed him, is not authorized in law to make an arrest or serve any process in Harris county, and it is only within the limits of the prescribed territory where they are peace officers, where they are authorized to make arrests and serve process, that the unlimited right to carry arms is given, and when not within the limits of that territory, unless on official business, they have no more right to carry arms than any other citizen.

It further appears from the testimony of appellant that the sheriff of Ft. Bend county had appointed two deputies in the justice precinct in which appellant lived and held his deputyship; that his brother was the active deputy, who made arrests and served process for the sheriff. If this is true, then under the provisions of article 7125 of the Bevised Statutes the appointment of appellant would be illegal, and he would not have the right under this appointment to carry a pistol in Ft. Bend county, much less in Harris county. The appointment of the sheriff in violation of the law, which only gives him authority to appoint one deputy and no more in justice precincts outside the precinct in which the county seat is situate, would confer no authority on appellant. A practice had grown up in some counties for the sheriff to appoint all his friends deputies who desired to carry pistols, and who never did and were never expected to perform any official act, and the Legislature to remedy this evil passed said article of the statute, and an officer has no more right under the provisions of the law than any other citizen has to violate the law of his state. •

Another contention is made that, if appellant honestly believed he had the right to carry the pistol in Harris county under an appointment of the sheriff of Ft. Bend county, he should be acquitted. This would be a mistake of law, and not a mistake of fact, and the court did not err in overruling this contention.

However, there is one bill of exceptions in the record which we think presents error. The record discloses that appellant had a fight in the restaurant of Dudley Bros., in Houston, in Harris county, and at this time had a pistol on his person. He was arrested and carried to the city jail, where he placed money in the hands of the officer in an amount that the officer desired as bail for his appearance. He then turned and left the jail, and after doing so Mr. Horton pursued him to get him to return to attend to some minor matters. He declined to return, and an altercation occurred between him and Mr. Horton. This altercation, and all that took place, was admitted over appellant’s objection. In this we think the court erred. Had the 'minimum punishment been assessed, we would not reverse the ease; but inasmuch as, in addition to the monetary fine, he was given as punishment 60 days in the county jail, we cannot say that this latter testimony did not have its weight with the jury in causing them to assess more than the minimum punishment; and as it was error to admit the testimony, and we cannot say it was harmless error, the judgment is reversed, and the cause remanded.


author: HARPER, J. DAVIDSON, J.

text:
    DOUGLASS v. STATE.
    (No. 3047.)
    (Court of Criminal Appeals of Texas.
    April 8, 1914.)
    1. Witnesses (§ 45)—Competency — Children.
    A child eight years old, who shows on her voir dire examination that she can relate the transactions as to which she will be interrogated as a witness, and understands the nature of an oath and that she will be punished if she does not tell- the truth, is properly permitted to testify.
    [Ed. Note.—For other cases, see Witnesses, Cent. Dig. §§ 104—107; Dec. Dig. § 45.]
    2. Witnesses (§ 79) — Competency—Children—Presumptions.
    A child over 14 years old is presumptively competent to testify.
    [Ed. Note.—For other cases, see Witnesses, Cent. Dig. §§ 201-204, 216; Dec. Dig. § 79.]
    3. Criminal Law (§ 1158)—Witnesses (§ 79) —Competency—Children.
    The competency of a child under 14 years of age to testify must be determined by an examination by the court, and its decision will not be disturbed in the absence of an abuse of discretion to the prejudice of the party complaining.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 3061-3066, 3070, 3071, 3074; Dec. Dig. § 1158; Witnesses, Cent. Dig. §§ 201-204, 216; Dec. Dig. § 79.*]

      4. Rape (§ 48) — Evidence—Statements.
    The detailed statements of a cMld eight years old made to the first person she met after she had been raped, were not admissible, unless a part of the res gestae, and, where the interval between the assault and the meeting of such person was. not shown, the proof of the statements could not be justified.
    [Ed. Note. — Eor other cases, see Rape, Cent. Dig. §§ 67-09; Dec. Dig. § 48.]
    5. Criminal Law (§ 530) — Confessions — Evidence — Admissibility.
    A confession reduced to writing and proved by three witnesses is properly admitted in evidence.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 530.]
    6. Criminal Law (§ 1169) — Harmless Error —Erroneous Admission of Evidence.
    Where all the legal testimony, including the confession of accused, showed his guilt beyond question, and the only defense offered was want of sufficient intelligence, error in admitting improper testimony of guilt was not reversible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. ’§ 1169.]
    7. Criminal Law (§§ 311, 331) — Insanity — Defense — Burden of Proof.
    The rule that if accused was, at any time prior to the commission of the offense, insane, the law presumed that the condition existed at the time of the offense, unless the state established beyond a reasonable doubt that at that time he was of sound mind, applies only where, prior to the offense, accused had been legally adjudged insane, or it had been admitted or conclusively proved on a trial had prior to the offense that he (was insane, and in other eases accused has the burden to show his mental incapacity to commit the crime at the time of its commission.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 742-744; Dee. Dig. §§ 311, 331.]
    8. Criminal Law (§ 331) — Insanity — Defense — Evidence.
    Where the state shows beyond a reasonable doubt that accused committed crime, and he relies on mental irresponsibility, he has the burden of showing that fact, notwithstanding the presumption of innocence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 742-744; Dec. Dig. § 331.]
    9. Rape (§ 52) — Evidence—Sufficiency.
    Evidence held, to sustain a conviction of rape on a child under the age of consent.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 71-74, 76; Dec. Dig. § 52.]
    10. Rape (§ 64) — Punishment—Sentence. Where the jury, finding accused guilty of
    rape, fixed his punishment at 35 years, the sentence, in view of the indeterminate law, must be a sentence of imprisonment for not less than 5 years nor more than 85 years.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. § 105; Dec. Dig. § 64.]
    Davidson, J., dissenting.
    Appeal from District Court, McLennan County; E. C. Street, Special Judge.
    Will Douglass was convicted of crime, and he appeals.
    Affirmed.
    Edgar Harold and Blair Stribling, both of Waco, 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

   HARPER, J.

Appellant was convicted of rape on an eight year old girl, and prosecutes this appeal.

Jimmie Hickey testified that appellant came to him and offered him a nickel to go and get Lucile House to come out there — they wanted her at the courthouse — and he did go and get her for him. Lucile House testified that appellant told her her mother wanted her to come to the courthouse; that she got ready and went with appellant, and, instead of him carrying her to the courthouse, he carried her out in the woods and raped her. She was examined by a doctor, and it was conclusively shown that she had been raped.

Appellant objected to Jimmie Hickey testifying, who was only nine years old, and Lucile House, who was only eight years old, on the ground that, they were incompetent witnesses. Appellant submits a sound proposition of law, that children who, after having been examined by the court, appear not to possess sufficient intellect to relate transactions with respect to which they are interrogated, or who do not understand the nature and obligation of an oath, are incompetent as witnesses. But this record discloses that, when these witnesses were questioned in regard to this transaction, they do possess sufficient intelligence to correctly and intelligently relate the transactions about which they are interrogated. The little girl especially seems to possess more than average intelligence for negro girls of her age, while the boy details exactly what he did and his connection with the transaction. As regards the obligation of an oath: The boy said he knew the clerk swore him to tell the truth, and that they would put him in jail if he did not do so. The girl testified that she goes to school, knows her A B O’s, and can read and write; that she knew she had sworn to tell the truth and she would be put in jail if she did not do so. Our law has wisely placed this matter within the discretion of the trial judge, and we woijld only be authorized to disturb his finding where an abuse of discretion has been shown. We do not think this record discloses any abuse in this respect, but the voir dire examination of these witnesses show a careful, painstaking investigation of, their competency as witnesses, and it has often been held by this court there is no precise age within which a child is held incompetent to testify. At the age of 14 a person is presumed to be competent. Under that age his competency is practically determined by an examination in respect to natural intelligence, etc., and, unless it be made clearly to appear that in admitting the testimony of a child the court below abused its legal discretion to the prejudice of the accused, this court will not reverse his ruling. Brown v. State, 2 Tex. App. 115; Ake v. State, 6 Tex. App. 398, 32 Am. Rep. 586; Burke v. State, 8 Tex. App. 336; Williams v. State, 12 Tex. App. 127; Taylor v. State, 22 Tex. App. 529, 3 S. W. 753, 58 Am. Rep. 656; Hawkins v. State, 27 Tex. App. 273, 11 S. W. 409; Parker v. State, 33 Tex. Cr. R. lll, 21 S. W. 604, 25 S. W. 967; Oxsheer v. State, 38 Tex. Cr. R. 499, 43 S. W. 335. In the cases aboye cited will be found the rule clearly announced, and in hardly any of them were the children possessed of more ability to correctly and intelligently relate the transaction inquired about than do these two children, and in some of them not near so much intelligence is disclosed.

In another bill it is shown that Lueile House, on her way from the place she was carried by appellant and raped, met her uncle, King Washington, he being the first person she met, and he was permitted to detail what she told him. Pie said that when he met her he asked where she had been, and she said: “T have been in the country.’ I asked her what she went out there for, and she said, ‘That man carried me out there.’ I suppose that was along something after 4 o’clock. I picked her up and asked her what man, and she said, ‘Mr. Douglass.’ She said, ‘He carried me out in the woods.’ I says, ‘What did he do?’ She says, ‘He laid me down.’ ” The court says he admitted this testimony because this was the first person the little girl met after she had been raped appellant. The record does not disclose the length of time elapsing from the time she left appellant until she met her uncle, and he says she was excited, but we hardly think the state makes a case which would render this testimony admissible as res gestas, and the fact that it was the first person she met would not render it admissible, unless it comes within the res geste rule. So hold all of our decisions, beginning with Pefferling v. State, 40 Tex. 487, on down to the present time. But is it such error as should cause a reversal of the case? Tn the record before us there is no effort made to show that appellant did not in fact have carnal intercourse with this girl. The evidence and all the evidence shows that he did; the only defense made being that appellant was a person of weak intellect from his birth, and that he had not sufficient intelligence to know right from wrong.

The record contains a confession made by appellant which reads:

“The State of Texas, County of McLennan. I, General Douglass, being under arrest and charged with the offense of rape and being warned by Jno. B. McNamara that I do not have to make any statement or confession at all in reference to said charge and accusation against me, and that any statement which I might make in reference to said charge against me may be used in evidence against me on my ■ trial for the offense concerning which my statement and confession is herein made, do freely and voluntarily and without compulsion or persuasion make to the said Jno. B. McNamara the following statement and confession: Last Saturday April 12, 1913, I was down to Mrs. House’s home. She lives down near River street. Lueile House was there. She is a negro girl. I told her to come and go with me to where I worked and I would buy her a dress. She went with me out N. 5th St., and when we got near the end of N. 5th St. we went into some brush, and we lay down on the ground. I pushed her over, and when I did she said, ‘Don’t do that.’ As I pulled her over I pulled my tool out and got on her, and tried to get it in her and stayed on her about ten minutes. I came all right — I mean by this that I got my gun off. When I come the smear went all over her legs and clothes and on my old hat. I took Lueile away from home to get a little from her. I never intended to buy her a dress — I told her that to get her to go with me. I come on back to town with Lueile and went to within a block of her house. I did not go on home with her because I knew I did wrong. I call Lueile about 8 years old. Witness my hand this 14th day April, 1913.
“General X Douglas.
mark
“Witness: James Hays Quarles. Lee Jink-ins.”

This confession, proven up as it was by three witnesses, was properly admitted in evidence, and it, together with all the testimony properly admitted on the issue of rape, renders the testimony of the witness King Washington harmless error.

If there was any evidence tending to show that she had not in fact been raped, or, if raped, that appellant was not the person guilty of the offense, we would not so hold; but when the legal testimony and all the testimony proves these facts beyond question, and his confession ádmitting the offense being in the record, and the only defense offered being a lack of sufficient intelligence to be amenable to the law, the case should not be reversed because of the admission of this improper testimony. It added nothing to the strength of the case made by the state under these circumstances, and it has always been the rule in this court that under such circumstances the case will not be reversed. Tinsley v. State, 52 Tex. Cr. R. 95, 106 S. W. 347.

Appellant requested two special charges in which he asked the court to charge the jury, if they believed that at any time prior to the date of the commission of the offense the defendant was insane, or an idiot, or an imbecile, • the law would presume that this condition existed at the time of the commission of the offense, unless the state established beyond a reasonable doubt that at the time the offense was committed appellant was of sound mind. This is the law, as shown in the case of Witty v. State, 153 S. W. 1146, only in those cases where prior to the commission of the offense the person on trial has been legally adjudged insane or it is admitted or proven conclusively on the trial bad prior thereto that he had been insane. In all other cases, while all testimony which would tend to show that he was insane or an idiot, or an imbecile, at the time of the commission of the offense, would be admissible, no matter how remote, yet under the decisions of this court the burden of proof is on the defendant to show his mental incapacity to commit crime at the time of its commission, and the court did not err in so instructing the jury in his main charge, and this issue was fairly presented in the main charge and in the charge given at appellant’s instance, reading as follows: “Gentlemen of the Jury: You are charged that the law does not require the defendant to establish his insanity beyond a reasonable doubt, but the law requires that he establish it by a preponderance of the evidence, and, if you find that he has established his insanity by a preponderance of the evidence, you will acquit him.”

The defendant also requested the court to instruct the .jury that, while the law presumes that all men are sane, yet this presumption is subordinate to the presumption of innocence. While this is the law in some states, that, when the question of insanity is raised by the testimony, the state must prove sanity beyond a reasonable doubt, yet this has nevér been the rule in this state, and this court has always adhered to the rule that when the state shows that the crime was committed by the person on trial beyond a reasonable doubt, and he seeks to avoid its consequences by proof that he was not mentally responsible for his acts, the burden is on him to so show.

The only other ground we need discuss is the sufficiency of the testimony. That it shows that appellant raped the little girl is beyond all question, but the testimony introduced by appellant does tend to show that he is a person of weak intellect from his birth; yet the facts attendant upon this crime would lead one to almost conclusively conclude that he knew this crime was wrong. He met the mother up in town attending court; he goes down to the mother’s residence, and, finding the little girl at a neighbor’s, he sends a boy to her to tell her that her mother has sent for her to come to the courthouse. He also tells this to the little girl to get her to go with him; takes her to the woods, where no prying eyes can see, and where no ears can hear her protests. He beguiles her with promises, and then commits the offense. His whole acts and' conduct show sufficient intelligence to lead any one to believe that, as soon as he saw the mother and brother uptown, he conceived the idea of seducing this girl away from her home'; to think up a plausible story to induce her to leave her home with him; to take her to a secluded spot and there make fair promises, in order to accomplish his purpose. The whole theory of the defense is based on weak intellect from birth, and yet his relatives and parents have permitted him to go at will, and this is not the first crime he has committed.. The state’s witnesses and some of the defendant’s witnesses testify that he does know right from wrong, and has sufficient mental capacity to commit crime, and we will not disturb the verdict.

However, he was entitled to be sentenced under the indeterminate sentence law, and the sentence is reformed to read that he be confined in the penitentiary for a term of not less than five years nor more than the number of years of punishment affixed by the jury, and the judgment is so reformed and corrected.

The judgment is affirmed.

DAVIDSON, J.

I think the special charge requested ought to have been given under authority of Wooten’s Case, 51 Tex. Cr. R. 428, 102 S. W. 416, and cases cited by appellant. The issue of settled or permanent insanity was an issue, and it ought to have been charged.

2. Error is conceded by majority in regard to statements by prosecutrix, but they hold it not of sufficient importance to reverse because the evidence is sufficient to show guilt. This is not legally the criterion where important illegal evidence is admitted. Defendant received 35 years in the penitentiary. This is not the minimum punishment.

3. The criterion of competency of children as witnesses is liability for perjury. Under this rule, under present statute, I more than doubt the admissibility of the evidence of the two children who testified. Article 34, P. C.


author: PRENDERGAST, R J.

text:
    CRESENCIO v. STATE.
    (Court of Criminal Appeals of Texas.
    April 8, 1914.)
    1. Indictment and Information (§ 138) — Motions to Quash—Burden of Proof.
    A motion to quash an indictment which did not state accused’s full name, on the ground that the grand jury, by the exercise of reasonable diligence, could have ascertained his true name,' was properly overruled, where it was not sworn to, and was supported by no evidence.
    [Ed. Note.—For other cases, see Indictment and Information, Cent. Dig. § 472; Dec. Dig. § 138.]
    2. Indictment and Information (§ 140) — Amendments—Designation of Accused.
    Where an indictment did not state accused’s full name, reciting that it was unknown to the grand jurors, a motion to quash the indictment, in which motion his full name was stated, should have been treated as suggesting his name, and the court should have corrected the indictment, made the proper entries, and proceeded with the cause.
    [Ed. Note.—For other cases, see Indictment and Information, Cent. Dig. §§ 474, 475, 478; Dec. Dig. § 140.]

      S. Ceiminal Law (§ 1186) — Appeab—Harmless Error — Designation of Accused in Indictment.
    Under Code Cr. Proe. 1911, art. 451, subd. 4, and article 456, requiring indictments to contain accused’s name, or state that it is unknown, and give a reasonably accurate description of him, article 559, providing that, unless accused suggests, when arraigned, that he is not indicted by his true name, it shall be taken as truly set forth, artides 560, 561, and 562, providing for the correction of the indictment upon such a suggestion, and that, if accused refuses to say what his real name is, the cause shall proceed, article 453, requiring an indictment to be such as to enable accused to plead the judgment thereon in bar of a subsequent prosecutioh, article 460, making indictments suffident which charge the offense so as to enable á person of common understanding to know what is meant, give accused notice of the particular offense charged, and enable the court to pronounce the proper judgment, and' artide 476, providing that the proceedings shall not be affected by any defect of form in an indictment which does not prejudice accused’s substantial rights, the giving of a wrong name or the failure to give accused’s full name is a matter of form only, and, where he was described by his Christian name, nationality, and place of residence, which description was not shown to be untrue, and it appeared that he was the identical person alleged to have committed the offense charged, the judgment will not be reversed.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 3215-3219, 3221, 3230; Dee. Dig. § 1186.]
    Appeal from Hays County Court; J. R. Wilhelm, Judge.
    Cresencio de la Cerda, indicted as “Cresen-cio, a Mexican,” was convicted of violating the- prohibition law, and he appeals.
    Affirmed.
    R. E. McKie, of San Marcos, 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. Seriei & Rep’r Indexes

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

   PRENDERGAST, R J.

Erom a conviction for a misdemeanor for violating the prohibition law, with the lowest penalty prescribed by law affixed, appellant appeals.

While the evidence was contradictory it was amply sufficient to sustain the verdict. The only material question in the case is as to the sufficiency of the indictment, becaus'e of appellant’s name. The indictment properly charges every essential element to show, and does show, that the law prohibiting the sale of intoxicating liquor, making it a misdemeanor, was in force at the time this offense is alleged to have been committed. It then alleges that on May 15, 1913, “Cresen-cio, a Mexican, living at Kyle, a better description and name being to the grand jurors unknown, did,” etc., unlawfully sell a bottle of whisky, etc.

When the case was called for trial, appellant, by his attorney, made a motion to quash the indictment, because it did not contain his surname, or any description of him; that his name is Cresencio de la Cerda; that he is not known by the name contained in the indictment, and has never been known by any such name or any other than Cresencio de la Cerda, which is his true name; that he has resided in Kyle, in Hays county, for a number of years, and is well known there, and, by the exercise of reasonable diligence, his true name could have been known by the grand jury returning the indictment. This, motion is signed by his attorney alone, not. by him. It is not sworn to by any person,, and the record does not show that any evidence whatever was introduced before the-court on the hearing of said motion. It simply and solely shows that, when the court: heard the motion, he overruled it, and appellant excepted. Certainly the motion, not: sworn to, and no evidence introduced to support the extrinsic allegations therein, should, not be held sufficient to quash the indictment. Whether it did or not, it should have been, held to have suggested appellant’s correct and full name, and the court should have had the indictment corrected, the proper entries, made, and the cause proceed as directed by the statute. The court correctly overruled the motion to quash.

The case then went to trial before a jury. It was admitted that the prohibition law, as. alleged, was in force at and before the alleged sale was made. The state introduced, one witness who testified, showing fully and-eompletely that appellant committed the offense charged at the time and place alleged,, and rested. The defendant then testified, denying making the sale, he claiming that he-made a gift of the whisky and not a sale,, and received no money therefor. He introduced one witness, who, to some extent,, corroborated him. He alone testified that his name was Cresencio de la Cerda; that he lived at Kyle, in Hays county, and that-he had lived there, more or less, for the-past 16 years; that for a long time he run a "barber shop and restaurant on one of'the-main streets in the town; that he was well-, known to most all of the people in Kyle; and. that Mr. Sledge and all the merchants knew-him; “most everybody in that community knows my name.” This, in substance, was. the testimony on this subject in full.

Appellant then made a motion to perernp--torily instruct the jury to find him not guilty,, because no evidence had been adduced showing that due diligence was used to procure- and insert in the indictment his true name,, and that the evidence showed his true name-as alleged and testified by him, and that there was no sufficient description of him,, and that the indictment nowhere alleges any diligence was used by the grand jury to pro- • cure his surname or true name. The court-, overruled this motion, to which he excepted.. After his conviction, he made a motion in, arrest of the judgment, on the same grounds. This was overruled.

In our opinion, none of these matters show ■ any reversible error. Our decisions are conflicting on the subject. Decisions may be-found, and some are cited by appellant,. which would indicate that appellant’s motion to- quash was good, while others are to the contrary. Perhaps other decisions would indicate that his refused instruction should have been given, and that his motion in arrest of judgment should have been sustained, while other decisions are, in effect, to the contrary. Under the circumstances and the conflict in the decisions, we will go to the statutes on the subject and to principles applicable thereto, and abide thereby.

Under our Code of Criminal Procedure, when first adopted, one of the requisites of an indictment was (article 451, subd. 4): “It must contain the name of the accused, or state that his name is unknown, and, in case his name is unknown, give a reasonably accurate description of him.” • And (article 456, C. C. P.): “In alleging the name of the defendant or of any other person necessary to be stated in the indictment, it shall be sufficient to state one or more of the initials of the Christian name and the surname. When a person is known by two or more names, it shall be sufficient to state either name. When the name of the person is unknown to the grand jury, that fact shall be stated, and, if it be the person accused of the offense, a reasonably accurate description of him shall be given in the indictment.”

The following articles of the Code of Criminal Procedure were also a part of the old Code:

“Art. 559. When the defendant is arraigned, his name, as stated in the indictment, shall be distinctly called; and, unless he suggest by himself or counsel that he is not indicted by his true name, it shall be taken that his name is truly set forth, and he shall not thereafter be allowed to deny the same by way of defense.
“Art. 560. If the defendant, or his counsel for him, suggest that he bears some name different from that stated in the indictment, the same shall be noted upon the minutes of the court, the indictment corrected by inserting therein the name of the defendant as suggested by himself, the style of the cause changed so to give his true name, and the cause proceed as if the true name had been first recited in the indictment.
“Art. 561. If the defendant alleges that he is not indicted by his true name, and refuses to say what his real name is, the cause shall proceed as if the name stated in the indictment were true; and the defendant shall not be allowed to contradict the same by way of defense.
“Art. 562. Where a defendant is described as a person whose name is unknown, he may have the indictment so corrected as to give therein his true name.”

Also as a part of the old Code was article 458, which is:

“Art. 453. The certainty required in an indictment is such as will enable the accused to plead the judgment that may be given upon it, in bar of any prosecution for the same offense.”

Since all of these articles were originally enacted as a part of the Code, Act March 26, 1881, c. 57, p. 60, was enacted, whereby it was provided (article 460): “An indictment for any offense against the penal laws of this state shall be deemed sufficient which charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment.” And article 476 is a part of the same act, which is: “An indictment shall not be held insufficient, nor shall the trial, judgment or other proceedings thereon be affected, by reason of any defect or imperfection of form in such indictment which does not prejudice the substantial rights of the defendant.”

Taking all of these articles ■ together we think it is clear and certain: First, that the purpose and object in giving the name of an accused in the indictment is for identification; the name alone is sufficient for that, without any description whatever; second, that a wrong name or not the full name is a matter of form only, which an accused can readily and at his own suggestion completely have corrected at the time; third, that when part of the name is correctly given and a description of him such as given in this case is shown to be true, or, rather, when it is not shown that it is untrue is a sufficient description of him and establishes his identity; and, fourth, as said by article 476, an indictment shall not be' held insufficient, nor shall the trial, judgment, or other proceedings thereon be affected, by reason of any defect or imperfection of form in such indictment which does not prejudice the substantial rights of the defendant.

In this case it is an absolute certainty that appellant and no other was the identical per-dón who is alleged to have committed the offense charged herein. He so testified, and all of the evidence, without the slightest contradiction or uncertainty, shows that he is that person. That the portion of his name Cresencio is his name, and no other is shown to have had the same name, that he is a Mexican, and that he lived at Kyle is, without doubt, also shown. And it is without a shadow of doubt shown that his substantial rights have in no way been prejudiced by not giving his full name, and therefore the indictment should not be held insufficient, nor should the trial, judgment, or other proceeding thereon be affected, by reason of any defect or imperfection of form in the indictment.

Such being the case and the clear intent of the statute and law, the judgment herein will be affirmed.