text:
    LUNSFORD v. STATE.
    (No. 4302.)
    (Court of Criminal Appeals of Texas.
    Dec. 6, 1916.)
    1. Names <§=16(2) — Indictment—Sufficiency-Idem Sonans.
    In an indictment for larceny, the name “Mc-Keg” is idem sonans with “McCaig,” which was the true name of the victim of the larceny, so that the indictment was sufficient.
    [Ed. Note. — For other eases, see Names, Cent. Dig. § 13; Dec. Dig. <S=»16(2).]
    2. Larceny <®=^32(1) — Indictment — Sufficiency.
    In an indictment for larceny, if the injured party was generally known by the name alleged, his true name was immaterial.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. § 81; Dec. Dig. <@=^32 (1); Indictment and Information, Cent. Dig. § 282.]

      3. Larceny <&wkey;50 — Evidence—Admissibility.
    In a prosecution for stealing seed cotton, a witness could testify as to letters on the shoulder strap of a sack containing the stolen cotton, and that he tried to find out by inquiry where the cotton came from, arid that he made observation on the ground of the tracks of two persons around the cotton and found where an automobile had stopped and leaked oil on the ground near the place where the cotton was found.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. § 142; Dec. Dig. <&wkey;>50.]
    4. Criminal Law <&wkey;393(3) — Evidence—Admissibility.
    In a prosecution for larceny of cotton, evidence that the county attorney took defendant’s shoes and fitted them in tracks about where the cotton was found is admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 873; Dec. Dig. <&wkey;>393(3).]
    5. Criminal Law <&wkey;517(6), 51S(4) — Evidence —Confession—Admissibility.
    A confession or admission of guilt is admissible if the accused was properly warned by the officer taking it, or if it was a personal statement to the county attorney.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1152-1156, 1161, 1162; Dec. Dig. &wkey;517(6), 518(4).]
    6. Criminal Law <&wkey;417(2), 696(3) — Evidence — Admissibility.
    It was error to permit the county attorney to testify, or to refuse to strike his testimony that he heard the testimony on an inquiring investigation of another witness, and to state what such witness then testified, where it subsequently was made to appear that accused was not then present.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §'968; Dec. Dig. &wkey;417(2), 696(3).]
    7. Criminal Law i&wkey;419, 420(10) — Evidence —Hearsay—Admissibility—Other Offenses.
    While evidence of other extraneous crimes, if a part of the res gestae, or tending to connect defendant with the offense for which he is on trial, is admissible, yet testimony that another person identified certain cotton stolen as his is hearsay and not admissible in a prosecution for stealing other cotton.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 980-983; Dec. Dig. &wkey;419, 420 (10).]
    8. Criminal Law <&wkey;829(l) — Instructions— Substance.
    The accused cannot complain of refusal of a requested instruction, when the court gave a similar instruction which omitted only one word, but did not change the effect of that requested.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. &wkey;829(l).]
    Appeal from Johnson County Court; B. Jay Jackson, Judge.
    Jess Lunsford was convicted of larceny, and he appeals.
    Reversed and remanded.
    W. B. Featherston and W. E. Myres, both of Cleburne, for appellant. O. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted for stealing some seed cotton.

The evidence was wholly circumstantial and was ample to sustain the conviction. Hence appellant’s charge to peremptorily acquit was correctly refused.

The pleadings alleged that the cotton was stolen from “Dad” McKeg, and that he was the owner, etc. He testified that his initials were “J. D.” and that his name was spelled “McCaig,” but that he was known and called as alleged in the pleadings and that his name was often spelled “McKeg” instead of “McCaig.” The names were idem sonans. 2 Vernon’s C. C. P. p. 203. Again, the universal rule in this state is that, if the injured party was generally known by the name alleged, it is immaterial what the true name was; and, if the injured party is known by one name as well as another, it is immaterial which is his true name; and, in either event, there is no variance. White’s An. C. C. P., § 340; 1 Branch’s An. P. C. p. 238.

That Dud Sanders testified, in describing the locations, what road or route he would travel in going to Ft. Worth, presents no error. This witness could also properly testify as to the letters he found on the shoulder strap of the sack in which the cotton was contained, and he could also testify that he tried to find out by inquiry where the cotton came from, and that he made observations on the ground, which consisted of his telling about the cotton, the tracks of two persons around about it, and that he found where an automobile had stopped and leaked oil, or oil was there found, upon the ground, and such like testimony. He was not permitted to testify what he learned by making inquiry. Perhaps his testimony that he learned later whose sack it was by making inquiry since then might not be admissible, but that alone would not present reversible error.

The county attorney testified that he took a pair of Clifford Morgan’s shoes and a pair of appellant’s out with him where this cotton was found, and that appellant’s shoes were tennis shoes. He further testified about finding tracks of persons there and fitting these shoes in them. This testimony was all properly admissible. He then further testified that appellant told him that his shoes which he had thus taken out were the shoes he had on on the Sunday night in question, which was the night of the theft. What he testified appellant thus told him was objected to by appellant. The bill does not disclose enough for us to determine whether this testimony was admissible or not. The county attorney had further stated that appellant was not in jail nor under arrest at the time he made the statement, but that he was in the county attorney’s office before a court of inquiry at the time. Whether he gave this testimony before the court of inquiry or made the statement personally to the county attorney at the time is not disclosed; nor iá it disclosed whether, if before the court of inquiry, he had been duly warned. We therefore cannot tell whether this testimony was admissible or not. If it was made in appellant’s testimony before the court of inquiry, it would be inadmissible if it was done under such circumstances as is covered by the decision in Simmons v. State, 184 S. W. 226, and cases there cited. If he was properly warned, then it would he admissible. If it was a personal statement to the county attorney, it would be admissible. We state these matters in order that the testimony may properly be admitted or excluded, as the facts may develop on another trial.

The county attorney was further permitted to testify, over appellant’s objections, that he heard the testimony of Clifford Morgan, it seems at the same inquiring investigation, and then proceeded to tell, as shown by Bill No. 5, what Morgan had testified on that occasion. At the time appellant objected it was not made certain whether appellant was present and heard Morgan’s testimony or not, but later, by the testimony of Mr. Peatherston, it was made certain that appellant was not present at that time, and, after this developed, appellant sought to have the testimony excluded from the jury; but the court refused to exclude it. This testimony of Morgan’s, as testified to by the county attorney, under the circumstances, was clearly hearsay. It was injurious to appellant, and presents error, for which the judgment must be reversed.

Perd Hamilton testified, among other things, that he remembered about some cotton being found in his pasture about September 4th or 5th; that he himself found the cotton. He then was permitted to testify, over appellant’s objection, that Lon Parris identified two sacks of the cotton as his. Appellant objected to this testimony in substance on the ground that it was an effort on the part of the state to show another and different theft from that alleged in the pleadings. The evidence showed that other cotton in sacks was found at the same time and place with that alleged to have been stolen from McKeg and was stolen at the same, or about the same, time. This testimony was admissible as against that objection by appellant; or, rather, Parris himself could have so testified. The rule is that when an extraneous crime is a part of the res gestae, or tends to connect defendant with the offense for which he is on trial, proof of same is admissible. 1 Branch’s An. P. C. § 166, p. 98, where a large number of authorities are collated. But that particular testimony by Hamilton that Parris did identify two sacks of the cotton as his was hearsay and inadmissible. 2 Branch’s An. P. C. p. 1343. On another trial, as stated, Parris could testify that he saw and identified two sacks of. the cotton as his, but Hamilton should not be permitted to state that Parris did so. Testimony showing that other cotton was stolen about the same time McKeg’s was, and found at the time and place his was, is admissible if appellant is shown to be illegally connec-ed therewith.

The charge of the court on circumstantial evidence is word for word the same as that requested by appellant, with the single exception that that requested by appellant added the one word “charged” to the end of the court’s charge. We think appellant’s complaint on this score is hypercritical. Either charge, so far as appellant’s objections are concerned, would have been proper. The addition of said word would have made no difference.

Por the errors pointed out, the judgment is reversed, and the cause remanded.

HARPER, J., absent.
      <®=5Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ¿feoFor other cases see same topic and KEY-NUMBER-in all Key-Numbered Digests and indexes


source: Caselaw Access Project

author: PRENDERGAST, P. J.

license: Public Domain

text:
    PORTER v. STATE.
    (No. 4238.)
    (Court of Criminal Appeals of Texas.
    Nov. 1, 1916.
    Rehearing Denied Dec. 20, 1916.)
    1. Depositions <&wkey;49—Officers Authorized to Take—Notaries.
    Code Cr. Proc. 1911, art. 820, as to taking depositions of witnesses residing in another state, does not authorize a notary public in such other state to take depositions in criminal cases. ,
    [Ed. Note.—Por other cases, see Depositions, Cent. Dig. §§ 72-80; Dec. Dig. <&wkey;>49.]
    2. Criminal Law <&wkey;598(3), 913(3).—Contin-uance—New Trial—Diligence.
    Where accused, instead of sending interrogatories to an officer authorize^ to take depositions, sent them to a notary public in another state, and it did not appear he provided for payment of the officer’s fees for taking depositions, and he did not explain why the depositions were not taken and returned in time for the trial, it was not error to refuse continuance nor to refuse new trial, because of his lack of diligence.
    [Ed. Note.—Por other cases, see Criminal Law, Cent. Dig. §§ 1336, 2144; Dec. Dig. <&wkey; 598(3), 913(3).]
    3. Criminal Law <&wkey;598(2), 913(3)—Contin-uance—New Trial—Diligence.
    Where accused made only one attempt to subpoena a witness residing in an adjoining county, although it appeared that the witness was home part of the time during the trial, it was not error to refuse accused continuance and to refuse him new trial because of his lack of diligence.
    [Ed. Note.—Por other cases, see Criminal Law, Cent. Dig. §§ 1336, 1341, 2144; Dec. Dig. &wkey;598(2), 913(3).]
    4. Criminal Law &wkey;>1091(14)—Appeal—Ne-cessity oe Specific Objections.
    To properly present several exceptions to the court’s charge, accused should take a separate bill to the court’s action in each instance where he does not correct or change his charge to meet accused’s objection, and should not embrace all his objections to the charge in one bill.
    [Ed. Note.—Por other cases, see Criminal Law, Cent. Dig. §§ 2823, 2824; Dec. Dig. <3&wkey; 1091(14).]

      6.Oeiminai, Law <&wkey;l 172(8)— Harmless Error — Refusal to Give Instruction — Effect of Verdict.
    The question of correctness of court’s refusal to instruct as to matters pertaining to a charge of assault to murder passes out on ■accused’s acquittal of such offense.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3161; Dec. Dig. &wkey;1172(8).]
    6. Criminal Law <&wkey;1093 — Appeal—Necessity of Specific Exceptions.
    Accused’s bill to refusal to give instruction requested, stating merely that at the proper time he presented his said charge, and asked that it be given, quoting the charge, and that the court refused to give it, did not authorize ■or require review of such refusal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2828-2833, 2919, 2920; Dec. Dig. &wkey;1093.]
    7. Criminal Law <&wkey;364(2) — Evidence—Res Gestas.
    In trial for aggravated assault upon a constable endeavoring to arrest accused, who was “joy riding” in an automobile, evidence as to acts of accused along the road leading up to .the alleged assault, such as that his party was drunk, drinking, and shooting, along the road at a high rate of speed, and also what accused’s companions shouted to him when he took his Winchester rifle and ran back towards the constable, making him throw up his hands and' marching him back, and the condition of accused’s gun at the time, and that he was attempting to work it so as to shoot the constable, was admissible as part of the whole transaction.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 808, 813, 816; Dec. Dig. &wkey;> 364(2).]
    8. Criminal Law <&wkey;1166:}4 (12)— Appeal — Harmless Error — Comment of Court.
    It appearing that the constable was summoned to arrest accused by a third party who thought accused had committed a robbery, where on objection to such third party’s testimony that when he was hunting for the constable, he met his brother and asked him if he was the constable, the court, passing on the question, said, “I don’t think that the constable at that time would have had to determine whether they were guilty of a felony or a misdemeanor, or which had been committed,” such comment would not authorize reversal, even if improper, since, while made in the hearing of the jury, it was not addressed to the jury, but to counsel debating a question of law.
    [Ed. Note. — For other case, see Criminal Law, Cent. Dig. § 3126; Dec. Dig. &wkey;1166% (12).]
    9. Assault and Battery <&wkey;83 — Evidence.
    It was not error to permit the constable to tell what the third party said when he came to get him to make the arrest.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 128, 134; Dec. Dig. <&wkey;> 83.]
    10. Criminal Law <&wkey;351(3) — Evidence — Flight.
    Flight, or attempted flight, may be shown as a criminating circumstance.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 779, 930, 931; Dec. Dig. &wkey;351(3).]
    11. Criminal Law <&wkey;351(4) — Evidence — Resisting Arrest.
    It is always proper to show that when accused is arrested, or sought to be arrested, for an offense, he resists it.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 780; Dec. Dig. <&wkey;351(4).]
    12. Assault and Battery <&wkey;83 — Evidence.
    In trial for aggravated assault on a constable who endeavored to arrest accused, it was proper to permit officers.in another city to tell that they were communicated with by those directed to communicate with them over the telephone by the constable, when accused hdd escaped from the constable, and that such officers acted on the communication and immediately prepared to arrest accused, the evidence showing that they had neither time nor opportunity to procure a warrant, and if they had not acted promptly accused would have escaped.
    [Ed. Note. — -For other cases, see Assault and Battery, Cent. Dig. §§ 128, 134; Dec. Dig. <&wkey;> 83.]
    13. Assault and Battery &wkey;>83 — Aggravated Assault — Exclusion of Evidence.
    It was not error to refuse to permit the county attorney to testify at accused’s instance that accused had been charged with drunkenness, disturbing the peace, resisting an officer sent to arrest him after he escaped from the constable, etc.; these matters being irrelevant.
    [Ed. Note. — For other .cases, see Assault and Battery, Cent. Dig. §§ 128, 134; Dec. Dig. <&wkey;> S3.]
    14. Witnesses &wkey;3392(l) — Impeachment.
    It was not error to permit the state,to introduce for impeaching purposes a written statement of a witness which contradicted some of his testimony on the trial; the proper predicate having been laid.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1249-1251; Dec. Dig. &wkey;392(l)j
    15. Criminal Law <&wkey;448(3) — Evidence — Opinion Evidence. '
    It was not error to permit the state to elicit from accused’s witness on cross-examination that it looked to him as if when accused was running back with the gun toward the assaulted party he was getting ready to shoot.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1036, 1037; Dec. Dig. 448(3).],
    16. Criminal Law <&wkey;1169(5) — Appeal — Harmless Error. •
    Where inadmissible testimony has been admitted, but is thereafter clearly excluded by the court’s charge given at accused’s instance, it is not reversible error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3141; Dec. Dig. <&wkey;>1169(5).]
    Appeal from District Court, Clay'County; Wm. N. Bonner, Judge.
    D. Porter was convicted of aggravated assault, and appeals.
    Affirmed.
    Wantland & Parrish, of Henrietta, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was indicted for an assault with intent to murder John Firestone, a constable of said county. Upon a trial he was convicted of an aggravated assault. The indictment, by .inclusion, embraced aggravated assault on several phases.

The offense was alleged to have been committed May 26, 1916. He was arrested and placed in jail on that date. The indictment was filed June 1st, and he was the next day served with a copy. He 'did not make bond from the time of the arrest until after his conviction. He was confined in the jail all this time. His trial was set for June 5th, and began that day, and consumed that and the following two days. With proper diligence appellant propounded interrogatories to John Reed, a witness who was a resident of Oklahoma. The district attorney promptly crossed, waived time, and appellant procured a commission on June Sd to the proper officers in Oklahoma to take the depositions. It may he conceded from his allegations that the testimony of Reed was material to him on some points. Our statute (article 820, O. O. P.) prescribes that:

The “depositions of a witness residing out of the state may be taken before the judge _ or chancellor of a Supreme Court of law or equity, or before a commissioner of deeds and depositions for this state, who resides within the state where the deposition is to be taken.”

It does not authorize a notary public in such other st.ate to take depositions, as has been repeatedly held by this court. Lienpo v. State, 28 Tex. Cr. R. 179, 12 S. W. 588; Murrell v. State, 184 S. W. 831, and cases therein cited. His application alleges that they sent the commission and interrogatories to a certain notary public in Oklahoma with instructions to him to have the witness to come before him and give his depositions. It nowhere alleges that he provided for the payment to any officer of his fees for taking the depositions. Nor does he allege or any way show why said depositions were not taken and returned within the time so that they could have been introduced. We know, judicially, that Clay county adjoins Oklahoma, only a short distance from Henrietta, the county seat of Clay county, and all of the testimony shows that this witness, lived but a short distance in Oklahoma from Clay county.

His other witness was Ivan Boyd, who lived in Montague county, in about a mile of Ringgold, just a short distance across the Clay county line. Within proper time he had a subpoena issued for him, as well as for some other witnesses, among them, his father, with whom he lived. His father and other witnesses were subpoenaed, and they appeared and'were present on the morning when the case was called for trial, his father having come from his home to Henrietta that morning. His son Ivan, the witness, had left home and was absent therefrom at the time his father was • subpoenaed, and he was not served. However, the testimony shows that Ivan Boyd returned to his home after a short absence and was there pending this trial, his father at appellant’s instance testifying during the trial that Ivan had returned to his home the night before he was testifying and was there when he got up that morning. It is evident that his father, appellant's witness, went back and forth to his home from Henrietta and stayed at home at night, returning to the court each morning. Appellant did not procure any other subpoena after the one was returned showing that Ivan Boyd had not been served and used no other diligence or means whatever to have Ivan to attend the trial. If appellant had used any reasonable diligence to have said Ivan attend as a witness, he could unquestionably, as this record shows, have secured his attendance.

Under the circumstances of this ease and as shown by the record, appellant used no such diligence to get the testimony of either of his absent witnesses as to entitle him to a continuance. In other words, it shows such a lack of diligence as would entitle him neither to a continuance nor to a new trial because he did not get said witnesses. We have had occasion to fully discuss this question and cite and quote from the authorities in Giles v. State, 66 Tex. Cr. R. 642-644, 148 S. W. 317, and Murrell v. State, supra. So that the court committed no reversible error in refusing his original application for a continuance, nor the renewal thereof, nor in refusing him a new trial on that ground.

Appellant' has a large number of bills of exceptions. It is unnecessary to state or discuss them separately. Several present the same character of question.

He filed a large number of exceptions to the court’s charge. He took one bill, embracing all these matters therein. It is perfectly evident from the record that the court changed his charge in at least several respects and gave some of his special charges to meet some of his objections. The only way to properly present such questions for review by this court under such circumstances is to take a separate bill to the court’s action in the particular instance wherein he does not correct or change his charge to meet the objection and not to embrace the whole thing in one bill.

He requested eight special charges. The court gave two of them just as asked. Three others were to matters pertaining solely to the charge of an assault to murder. As appellant was acquitted of this offense, all such questions pass out, as has uniformly been held. Neither of his others should have been given. However, neither of them is presented in such a way as to authorize or require this court to review them. His bill to each in substance and effect states that in the proper time he presented his said charge and asked that it be given, quoting the charge, and that the court refused to give it, to which he excepted. It has been the uniform holding of this court that in such instances, even in felony cases, and much more so in misdemeanor cases or convictions, such a bill does not present the questions so as to authorize or require this court to review it. Byrd v. State, 69 Tex Cr. R. 35, 151 S. W. 1068, Ryan v. State, 64 Tex. Cr. R. 628, 142 S. W. 878, and a great number of earlier eases cited in these decisions and other eases subsequently decided.

Briefly stated, the evidence shows: That appellant and three companions, he and two of whom at least, lived in Oklahoma, went therefrom to Wichita Palls in an automobile, and stayed there one night and about.half the next day, when they started to return in the same way. Their route was from Wichita Palls through Henrietta, and thence easterly to Oklahoma. That they all were drinking. Appellant and at least one of the others were drunk. They had a Winchester rifle and a pistol with them. Soon after leaving Wichita Palls they ran the automobile at an excessive speed, several witnesses testifying that they ran it part of the way as fast as that make of machine, the Pord, could possibly run — 25 to 35 miles an hour; appellant himself testifying that part of the time they ran it “awful” fast. 'That along the road they shot the gun while they were running. That on one or two occasions they stopped and shot it while they were traveling along the road, and that in the town of Jolley, through which they had to pass, they shot the gun at least twice while they were in this town. That after leaving Jolley, one of the state’s witnesses, who was traveling behind them in his automobile, testified in substance that, as he approached appellant and his companions, he saw appellant and one of the others out on the ground coming back the road, their automobile having stopped, and the other two remaining in it. The witness stopped his automobile also, and while thus stopped,, an utter stranger to him, and it seems to the appellant and his companions too, jumped up on his running board and demanded that the witness should take him on, which he refused. That while this was going on, appellant and his companion came up on him, demanded that he give them their pistol, and upon his failure or refusal to do so they took it away from him. It seems it appeared to this witness that they were forcibly taking a pistol away from this stranger, and he, the witness, did.not know to whom it belonged; it appearing to him that they were forcibly taking it away from this party. It developed on this trial that appellant or some one of his companions in running their automobile had dropped a pistol, and that they stopped their machine and went back to hunt for it, with the result stated. The state’s witness, as stated, did not know this at the time. John Firestone was the constable and lived near the road where these parties were traveling and these transactions occurring. This witness, who had seen as appeared to him the robbery of this stranger by appellant and his companion of the pistol, went ahead of them, reached Firestone’s residence where he was and told him that appellant and his crowd were a bunch of drunks, that they had taken a sixshooter from a party and had a Winchester, and in effect called upon the constable to act in the premises. The constable immediately took his pistol, got in an automobile, and rode down to the road where these parties would soon pass, with the intention of stopping and arresting them. The testimony, without dispute, shows that he had no time or opportunity to procure any warrant for their arrest, and that he had to act immediately. He was several miles from Henrietta. There was no justice of the peace nearer than Henrietta, nor any other means whereby he could have procured a warrant. It is certain that if he had not acted immediately, the parties would have entirely escaped and gone into Oklahoma before,he could have possibly overtaken them or procured a warrant. He reached the road these parties were running on before they got there, when he got out in the road, waved his pistol back and forth in his hand, and notified them that he was an officer, and demanded that they should stop; instead they speeded the faster, but after running 200 or 300 yards further they did. stop, and he started up towards them afoot, and appellant jumped out of his automobile, took the Winchester, ran back towards Firestone, and when not far distant from him, the state’s evidence shows, that he threw his Winchester down on Firestone, pointing it directly at him, and demanded that he throw down his pistol and throw up his hands. That Firestone at the time again reiterated to appellant that he was an officer, as he had stated to them when he had attempted to stop them •in the road just before this. That appellant did force the constable to lay his pistol down on the ground, move away from it, hold up his hands, and he had to remain in this condition until appellant reached the pistol, picked it up, and with his gun marched the constable down to where his car was. The assault in this instance is charged to have been committed at the time he leveled his gun upon the constable, forced him to lay his pistol down, move away from it, and hold up his hands. Whether the constable, when he first attempted to stop these parties in the road, told them that he was an officer or not, was a disputed point by the testimony. Also whether or not the constable so told appellant when he leveled his gun upon him, made him lay aside his pistol and hold up his hands, was disputed by the testimony; the state’s side showing that in both instances at the specified times the constable did notify them of his official position. When appellant marched the constable back to his car, the constable again told the crowd who he'was, and the other companions of appellant then made him deliver the constable’s pistol back to him, but before he would do so he unloaded it, kept all the cartridges and passed it back to him through one of the other parties. They thereupon jumped in their automobile, left, running very fast, and attempted to escape. The constable, it seems, went back up to his residence, near where these things took place, told his wife, or some others, to communicate with the officers at Henrietta what had occurred, and that the defendant and his companions were attempting to escape and to stop and arrest them, telling them substantially what had occurred, from which the parties making the communication and the officers at Henrietta receiving the communication believed, and acted upon such belief, that these parties had committed these crimes and were attempting to escape. AiDpellant and his companions stated, as shown, that when they left Firestone they ran their machine “awful” fast, trying to escape. That their route would take them through Henrietta, hut fearing they would be arrested if they attempted to go through Henrietta, they took another road so as to avoid going through Henrietta and attempted to escape into Oklahoma without being arrested at all. Firestone, it seems, as soon as he could, procured an automobile and took after appellant and his crowd, but he lost so much time and was so far behind that he did not catch up with them. The officers at Henrietta, as soon as communicated with, armed themselves, procured an automobile, and went on the road towards Wichita Falls, expecting to meet and arrest appellant and his crowd. They did not know them, however, and after running out a few miles did meet them; the appellant and his crowd running with great speed, as stated. Immediately after they met, the sheriff’s automobile was stopped, and another big, powerful machine belonging to Mr. Boyd came along, and Mr. Boyd, who had been following these parties, told the officers that the persons they had just met were the persons they were after. The officers then got in this big, powerful machine and took after appellant and his crowd. In attempting to avoid going through Henrietta on the road that they took, which appellant said he knew and by going it they would avoid Henrietta, they had to go through a gate, and to do this they had to stop the car, run it in, stop it again, and close the gate. That appellant himself got out with his Winchester in his hand, opened the gate, and had just closed it as these officers ran up. They immediately demanded that appellant and his crowd should halt, hold up their hands and surrender. Two of appellant’s companions promptly got out of the machine, did hold up their hands and surrender.' Appellant, however, retreated to the machine, and as the officers testified, attempted to shoot them with his Winchester, but his gun hung fire and would not shoot, and that they again fled some several miles before they could be overtaken again by the officers, and that just before the officers overtook them, they concluded that they had better go back and surrender. They stopped the car, and as the officers again caught up with them, they got out, held up their hands, and surrendered. We have merely given a general outline of what the evidence was sufficient to show, deeming it unnecessary to detail it. There were conflicts in the testimony on some material points.

Appellant has some bills objecting to the testimony of the witnesses following him in their automobiles as to the acts of appellant along the road leading up to the very alleged assault herein, such as that they were drunk, drinking, shooting along the road, and in the town of Jolley, the rate of speed, and the way they were running their machine, also what appellant’s companions shouted to him when he took his Winchester and ran back towards Firestone, making him hold up his hands and marching him back, wherein they shouted to him to shoot him, kill him, and such matters, and also the condition of appellant’s gun at the time, and that he was attempting to work it so as to shoot Firestone. We think all this testimony was admissible. It was a part of the whole transaction. The jury could not have understood the situation and properly passed upon the questions without it.

Appellant has another bill, wherein it is shown that he objected to the state’s witness Rountree telling that when he was hunting for the constable, he met Pat Firestone, a brother of John the constable, and that he asked him if he was a constable. That his attorney thereupon objected and was arguing that this one expression of the witness was inadmissible, and that the court, in passing on the question said to him:

“I don’t think that the constable at that time would have had to determine whether they were guilty of a felony or a misdemeanor, or which had been committed.”

This, as explained by the court, was a remark made to appellant’s counsel in his debating that question of law. The remark, while in-the hearing of the jury, was not to the jury at all, as shown. We think it no such comment as would authorize or justify a reversal of this case, even if it should be held to have been improper.

There was no error in the court permitting the witness John Firestone to tell that when Rountree came up to get him that he told him there was a bunch on the road with a gun and an automatic pistol, and for him to go down and stop them, telling him which one had the gun, and that he had seen him take the pistol away from another man on the road, and that the constable replied he would go down, and did go down; the court stating that he would permit him to say why he went down there.

Appellant by other bills shows that he objected to the testimony by the officers from Henrietta who responded to the call to arrest him and his bunch, which shows their flight and resistance of arrest when these officers came upon them at the gate and demanded their surrender, announcing that they were officers. The court at the time admitted this evidence, as stated by him, to show flight and resistance of arrest if it did and restricted the Jury to its consideration for that purpose only. This testimony undoubtedly tends to show both flight to avoid and prevent arrest, and resistance of arrest, at the time. Plight, or attempted flight, may always be shown as a criminating circumstance. Section 135, 1 Branch’s P. O. page 78, and authorities there collated. Also it may always be shown that when an accused is arrested, or sought to be arrested, for an offense, he resists it. Mitchell v. State, 52 Tex. Cr. R. 39, 106 S. W. 124; Moreno v. State, 71 Tex. Cr. R. 401, 160 S. W. 361; 2 Jones on Ev. § 287. So that we think all this testimony was admissible on these points. However, the court later gave appellant’s specially requested charge, instructing the jury peremptorily that they could not consider any of said evidence for any purpose except to show flight, if it did, and that they could consider it for no other purpose whatever.

Neither did the court err in permitting the officers at Henrietta to tell that they were communicated with, and by whom, telling them in substance of the said acts of appellant and his crowd, and that they acted thereon and immediately proceeded to undertake to arrest them. The evidence unquestionably shows that they had neither time nor opportunity to procure any warrant for any of them; and, as stated, if they had not acted as promptly as they did, the appellant and his crowd would have entirely escaped, which they were undertaking to do, running their machine in the most reckless and rapid manner, and avoided going through Henrietta for the very purpose, as they stated, to prevent and avoid being arrested.

Neither did the court err in refusing to permit the county attorney to testify at appellant’s instance that appellant had been charged .with drunkenness, disturbing the peace, resisting the officer Cunningham, aggravated assault on Eirestone, and aggravated assault on Cunningham, all these persons being the officers who attempted to arrest him, and that said charges grew out of the facts and circumstances testified to by the various witnesses on this trial, though we cannot see where the state should have objected to this testimony. It occurs to us that it would clearly have been against appellant and not in his favor, but at any rate it had no legitimate bearing upon the trial of appellant in this cause.

Neither did the court err in permitting the state to introduce the written statement of the witness Eckman, which contradicted some of his testimony on this trial. The court admitted it, as he stated, for impeachment purposes of this witness, the proper predicate having been laid.

Neither did the court err in permitting the state to have Brown, appellant’s witness, on cross-examination, to tell in substance that it looked to him like when appellant was running back with the gun that he was getting ready to shoot. Even if this testimony had not been admissible, it was clearly excluded by the court’s charge given at appellant’s instance, which we have just mentioned above.

We think no reversible error has been pointed out in the trial of this case. The judgment will therefore be affirmed.
      íte^>Fcr otlier cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <§=sFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    SPEERS v. STATE.
    (No. 4306.)
    (Court of Criminal Appeals of Texas.
    Dec. 6, 1916.)
    1. Criminal Law <&wkey;663 — Evidence—Record or Deed.
    In a prosecution for violating Pen. Code 1911, art. 500, relating to the keeping of disorderly houses, it was error to permit the introduction in evidence of the record of a deed on the contested issue of the ownership of the premises, where a certified copy of the deed had not been filed and notice thereof given as required by Rev. St. art. 3700.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1602; Dec. Dig. <&wkey;>663.]
    2. Criminad Law <&wkey;419, .420(11) — Evidence —Hearsay.
    In a prosecution for violating Pen. Code 1911, art. 500, relative to keeping of disorderly houses, the testimony of a witness as to what others told him and as to what he had learned from people around the house should have been excluded as hearsay.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 980, 981-983; Dec. Dig. &wkey;419, 420(11).]
    3. Criminal Law <&wkey;772(6) — Instructions.
    Where defendant in such case merely pleaded not guilty and made no special defense, and the court gave the usual charge on reasonable doubt, and instructed that the jury should not convict unless they believed all the facts necessary to establish defendant’s guilt beyond a reasonable doubt, requested special charges enumerating various facts alleged to constitute special defenses were properly refused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1817; Dec. Dig. &wkey;772(6).]
    4. Criminal Law <&wkey;763, 764(6) — Instructions — Weight oe Evidence.
    In a prosecution for violating Pen. Code 1911, art. 500, relating to keeping of disorderly houses, an instruction that the jury should not consider the location of the house was properly refused as on the weight of the testimony.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 1731, 1732, 1733; Dec. Dig. &wkey; 763, 764(6).]
    5. Disorderly House <@=»16 — Prosecution-Evidence.
    In such case evidence that the house in question was in the “reservation district” was admissible.
    [Ed. Note. — For other cases, see Disorderly House, Cent. Dig. §§ 21-25; Dec. Dig. <@==»16.)
    Appeal from Wichita County Court; Harvey Harris, Judge.
    Pauline Speers was convicted of violating Pen. Code 1911, art. 500, relating to the keeping of disorderly houses, and appeals.
    Reversed and remanded.

      T. R. Boone, of Wichita Falls, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was prosecuted under article 500, P. C., the indictment alleging that she was the owner of a certain house situated in said county, and that she did then and there unlawfully 'keep, and was concerned in keeping, and knowingly permitted to be kept said house as a house of prostitution, where prostitutes were permitted to resort and reside for the purpose of plying their vocation. She was convicted, and her punishment assessed as fixed by the statute.

The question of ownership of the premises was a contested issue. At least it was necessary for the state to prove this. A deed to her of comparatively recent date would tend strongly to prove her ownership. The state introduced various facts tending, and perhaps amply sufficient to show this, without reference to the claimed deed to her of the premises. However, over her objections, properly and timely made, the court permitted the state to introduce in evidence the record of a deed to her for said premises without having notified her the proper time in advance to produce the deed and without procuring any certified copy thereof and filing it and giving three days’ notice to her before the trial. Our civil statute (R. S. art. 3700) provides that a certified copy of an executed and recorded deed cannot be introduced in evidence unless the party who gives such instrument in evidence shall file the same among the papers of the suit in which he proposes to use it at least three days before the commencement of the trial of such suit and give notice of such filing to the opposite party, or his attorney of record. This statute is applicable to criminal as well as civil causes. This action of the court was clearly material error against appellant. Allison v. State, 14 Tex. App. 426; Gould v. State, 61 Tex. Cr. R. 195, 134 S. W. 695. Of course', if the original deed be produced, and its execution proven, then it could be introduced without being filed and notice given three days before the trial. What we have said is likewise applicable to any other deed or deeds to be introduced in evidence.

Appellant has another bill which we think presents error, and that is tó the effect that the witness Hinkley was permitted to testify as to what others told him, and he learned from the people around said house who. occupied it stating who this was. This was hearsay and should have been excluded. Under all the other testimony the admission of this would not have presented reversible error.

The court did not err in refusing to give a charge on circumstantial evidence as to appellant’s ownership of said house, nor in permitting the same to be kept, etc. Such a charge would have been inapplicable and not required. Neither did the court err in failing and refusing to give appellant’s said several special charges in effect enumerating the various facts tending to establish her guilt, because, as claimed by appellant, these or any of them were her special defense. She had no special defense. Her plea was simply not guilty. The charge of the court affirmatively required the jury to believe all facts necessary to establish her guilt beyond a reasonable doubt before they could convict her, and gave the usual charge of reasonable doubt, etc. This covered, all that was necessary on this point. Neither did the court err in refusing to give his charges to the jury not to take into consideration the location or situation of the house in question.' This would have been a charge on the weight of the testimony. The fact, if so, that the testimony established that the house in question was in the “reservation district,” was admissible in evidence. The fact that others than prostitutes might reside, or even own a home, in such district, would be a matter of argument only.

For the errors above pointed out, the judgment is reversed, and the cause remanded.

HARPER, J., absent.
      <©so>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    KIERNAN v. STATE.
    (No. 4256.)
    (Court of Criminal Appeals of Texas.
    Nov. 8, 1916.
    Rehearing Denied Dec. 20, 1916.)
    1. Ceiminal Law <®= 1171(1) — Appeal — HLabmless Error — Argument oe Prosecutor.
    In a prosecution for murder, where the main defense was insanity, and where there was medical .testimony on both sides of the issue, and where a doctor who had testified that defendant was sane, in answer lo a juror, stated that he did not think that defendant should be turned loose, even if the jury, in the alternative, were to return a verdict resulting in his confinement in jail, the prosecuting attorney’s argument that the state had no place for the confinement of insane persons except the penitentiary, implying that, if the jury acquitted and defendant was found insane, he would be released dn habeas corpus, which probability was emphasized -by the trial judge, was improper, and reversible error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3127 ; Dec. Dig. <@=>1171(1).]
    2. Insane, Persons <&wkey;83, 86 — Responsibility eor Crime — Confinement.
    An insane person cannot legally be held responsible for his acts, and the fact that the state provides no adequate means to confine an insane person in an asylum would not authorize his confinement in the penitentiary as a criminal.
    [Ed. Note. — For other cases, see Insane Persons, Cent. Dig. §§ 144, 145, 149; Dec. Dig. <@=>83, 86.]
    Prendergast, P. J., dissenting.
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    C. J. Kiernan was convicted of murder, and lie appeals.
    Reversed, and cause remanded.
    Butler L. Knight, Win. 0. Church, and S. D. Hopkins, all o£ San Antonio, for appellant. Joe H. H. Graham, of San Antonio, and C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of murder, and his punishment assessed at 99 years’ confinement in the state penitentiary.

The facts would show that appellant and his son John (the young man whom he killed) had an altercation at the breakfast table; that during the day appellant purchased a pistol, and went to the home of his daughter, and told her to warn John not to come home; that, if John did come home, he would kill him, showing her the pistol he had purchased, remarking, “If he came in he would come over his dead body; he also told me that morning, if he came back, he would kill him.”

Appellant’s wife testified that when he came home that evening he had a pistol in his hand, and told her, if she did not want a tragedy there, not to let John come home that evening. Both the mother and sister testified they gave John the warning and requested him not to come home that evening. C'apt. Brown, of the police force, testified to John coming to see him late in the afternoon, and reporting to him what his mother and sister had informed him of, and desired an officer to go with him. Pie did not send an officer, and advised him to wait until his father had time to “cool off”; that John made the remark, if he could get hold of him, he could take the pistol away from his father.

No one saw the tragedy but appellant. He testified that he did not say he would kill John, but said instead he told his wife and daughter to tell John not to come home; that he was armed and would defend himself — he testifying to a state of facts which would lead one to believe that he thought his son was trying to put him out of the house. He then testifies that his son rushed into the room where he was, and details the fatal affray as follows:

“I suppose he walked in two or three feet, and I just turned and told him, ‘Plold up! hold up!’ that way; ‘don’t advance, John.’ He turned in an instant, and like he was going to go back, and I felt very much relieved — in fact, happy. It was passed that way without any trouble, but I kept my eye on him all the time, and he turned southwest and stopped for a minute as he went to open the door, and just in an instant that he stopped I was afraid then he was going to advance, or change his mind, and I pointed the revolver right at him. I said, ‘Don’t advance this way, John.’ Before he did, I saw for an instant he drew himself togother and says, ‘Well, papa;’ and he dashed at me with Ms right arm around my neck, and we grappled into that room, and into the next, and into the dining room, and he sank in my arms.”

In the record before us there is but one error pointed out, and as to whether or not it should cause a reversal of the case is a question regarding which our decisions are not entirely harmonious, but in the writer’s opinion the best-considered cases hold that under the peculiar facts of this case, the error is of that nature as to necessitate a reversal of the case.

Appellant’s main defense was insanity. The .testimony of Drs. Largen and Kenney would render him mentally incapable to commit a crime in his then condition. They both had seen and examined appellant, and heard the testimony on the trial. The testimony of Dr. Berrey would render him wholly sane, knowing right from wrong, and legally responsible for his acts. Other testimony was introduced bearing on this issue, and it might be said the principal contested issue was whether or not appellant was sane or insane, and that bearing on this issue it appears by the record that during the examination of Dr. Kenney one juror propounded some questions:

“Q. Dr. Kenney, in view of this evidence, going back for a period of 17 years — that time the defendant would be at the age of about 38 or 39 years old; he was about 38 or 39 when he ordered his crippled son away from home — the evidence in this case shows he has exercised uncontrollable temper with Ms family from time to time until the 15th of September, 1915, when he took Ms son’s life. Now, if he has this record according to the evidence, being placed in this capacity off and on for a period of 17 or 18 years, I just want to ask you now, of course I don’t want the jury or anybody else to let this weigh on them at all, but I just want to ask your opinion: Now, in case a man is liberated, turned loose, what would be your opinion, don’t you think he ought to be kept under cover, kept in jail, or kept in the asylum? Do you think he ought to be turned loose? A. No, sir; I do not; I don’t think he ought to be turned loose. Q. Suppose he should, doctor, be sent for a period of two years; do you think you ought to turn Mm loose? A. No, sir.”

We have copied this in the record because of the remarks of counsel complained of. In bill No. 2 it is shown that—

“during the argument of Mr. Joe Graham, counsel for the state, in the closing argument to the jury,. he stated, over objection of defendant’s counsel, that the state of Texas had no place for the criminally insane except the penitentiary, and that if the jury in this case should acquit defendant because of his insanity he would have to be tried before another jury of six doctors, and if they found him insane he would be placed in an insane asylum, and that further the law creating such board of such doctors had -been declared unconstitutional, and that this court had been releasing parties adjudged insane by said board; and further because the court stated, then in the presence and hearing of the jury, that Wes, he had just turned one loose that noon upon a writ of habeas corpus.’ And because said state’s counsel argued the example of Hopkins’ case in this county to the jury, and stated it was a case he would never forget, and that she was running at large now, and she plead insanity.”

We. can hardly understand the court’s qualification to the bill. He verifies that the language was used by the district attorney, but says:

■ “No request in writing at the time was made that the jury be instructed not to consider it, and that in fact no exception was so reserved.”

And then hé adds that counsel did object to the remarks and request the court to instruct the jury not to consider the remarks, and it was at the time counsel personally made such objection and request that the court made the remark in the presence and hearing of the jury:

“Yes, he [the court] had just turned one loose [a person adjudged insane by a commission] that noon upon a writ of habeas corpus.”

When request was made to instruct the jury not to consider the improper remarks of the prosecuting officer, the court not only declined to do so, but in the presence and hearing of the jury emphasized the argument made by counsel that Texas had no place for the criminally insane other than the penitentiary, because the law providing the mode and means of incarcerating them in the asylum had been declared unconstitutional, and further emphasizing the only legitimate deduction from such argument, that if the jury acquitted appellant on the ground of insanity, and a jury commission then found him insane, and he was ordered confined in the asylum, the court would release him on habeas corpus and leave him at large, as Mrs. Hopkins was then at large.'

Take such argument in the light of the question propounded by the .juror to the doctor testifying to appellant’s insanity, it necessarily followed that there would be conveyed to the minds of the jury that, whether appellant was sane or insane, the only way he could be confined was by this jury finding him guilty and refusing to release him on the ground of insanity. Without passing on the question of whether or not Texas has a law whereby the insane can be confined in the asylums provided for their safe-keeping and treatment, we will say that, if appellant was in fact insane at the time he shot his son, the fact laws of this state provided no adequate means to confine him in an asylum would not authorize his confinement in the penitentiary as a criminal. The rule of law that an insane person cannot legally he held responsible for his acts is as old as the law itself — it is 'part and parcel of the law.

We do not know the facts surrounding the Hopkins case. We do know that such remarks were entirely outside the record in this case. It may be that counsel-for the state knew that certain members of the jury were familiar with the Hopkins case, and, if so, this was an improper appeal to them.

We do know from this record that, when Dr. Kenney was swearing to a state of facts that would render appellant irresponsible for his acts and had just answered the hypothetical question of the state, “Will you say under such state of facts he was necessarily crazy?” “I think he was, yes, sir,” one of the jurors propounded questions to the doctor, and asked if the doctor thought appellant ought to be turned loose, to which question the doctor answered, “No,” and that two years’ confinement would be insufficient, and' after such testimony had gone before the jury the prosecuting officer in his argument insisted that there was no confinement for the criminally insane but the penitentiary.

It may be that after hearing all the evidence the jury was convinced that appellant was sane, and if so this judgment should stand. But who can say what weight such argument would have with the jury, when the doctor who was testifying to appellant's insanity testified also that he should be kept confined. The assistant district attorney’s argument, that if the jury found appellant insane, and acquitted him on that ground, he could not be confined in the asylum, and the court “hacked him up” in such statement, by stating that he had that day turned a person loose who had been adjudged insane by a commission appointed under the law, on the ground the law was unconstitutional, would make the impression on the jury that the only way to confine appellant was for them to do so by their verdict.

The jury had but little option left. The witnesses for the defendant were swearing that he was insane, and it was dangerous to the public for him to be at large; the district attorney was insisting, “If you do not convict him of this murder, he will be allowed to go at large,” citing the Hopkins case, and this argument was reinforced by the district judge remarking, “Yes, I turned one loose today” — as much as to say, if you acquit this man on the ground of insanity, and an effort is made to send him to the asylum under a finding of a commission that he is insane, I will turn him loose on habeas corpus. Thus it was up to the jury to find him guilty and confine him in the penitentiary, or they were then and there informed he would not be sent to an asylum, but be turned loose upon the public.

We cannot sanction such improper proceeding. Appellant was entitled to have the issue of his sanity tried under the rules of law, and no improper influence brought to bear on the jury to sway their judgment on that issue.

The judgment is reversed, and the', cause remanded.

PRENDERGAST, P. J., dissents..
      <gcu>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, J.

text:
    PERKINS v. STATE.
    (No. 4149.)
    (Court of Criminal Appeals of Texas.
    Dec. 6, 1916.)
    1. Master and Servant <§=318 — Eight Hour Law — Violation — Sufficiency of Evidence.
    Evidence, in a prosecution for violating the eight hour labor law, held insufficient to show that defendant had any control over the laborer permitted to work in violation of law.
    [Ed. Note. — For other cases, see Master and Servant, Dec. Dig. @=318.]
    2. Master, and Servant @=313 — Eight Hour Labor Law — Elements of Oeeense — “Permit.”
    It is essential to a conviction ot unlawfully permitting an employé to labor in violation of the eight hour labor law that defendant shall have had some control over the laborer; the word “permit” as used in the statute necessarily carrying the idea of such control.
    [Ed. Note. — For other cases, see Master and Servant, Dec. Dig. @=>13.
    For other definitions, see Words and Phrases, First and Second Series, Permit.)
    Appeal from Collin County Court; H. L. Davis, Judge.
    F. D. Perkins was convicted of violating the eight hour labor law and appeals.
    Reversed and remanded.
    Wallace Hughston and W. R. Abernathy, both of McKinney, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

This conviction was for violation of the eight hour labor law.

The record discloses that there was being constructed a public road from the edge of the city of McKinney about 7*4 miles into the country, under contract with the commissioners’ court by J. Fred Smith. This was in road district No. 4 of Collin county. After Smith made the contract with the commissioners’ court, he made a contract with appellant. By the terms of this contract appellant was to furnish the necessary funds to finance and carry out the contract to construct the road. In consideration of this defendant was to establish an office in the city of McKinney to handle funds and to pay out money, as well as to receive and collect from the company payments under the contract, and at the completion of' the contract appellant was to receive one-half of the profits after payment of expenses. The actual construction was in charge of Mr. Keller as foreman. Keller was employed by J. Fred Smith and placed in charge of the work, clothed with full authority to employ and discharge all hands and laborers, with complete authority to issue all orders in the construction of the road and superintend all laborers as well. It is further shown appellant had no authority to issue any orders or to manage or control the construction work, or employ or discharge any hand or laborer, or to issue any orders to them, or require or permit these laborers to work or not to work on the road at any time. It is also shown that he had nothing to do with constructing the to ad, or with the laborers engaged in such construction. He had no management of the prosecuting witnesses Carter and Lu-ten. He neither employed nor discharged them, nor managed or controlled them, nor did he require or permit them to work or not to work. Appellant signed some of the pay checks, and the others were signed by the bookkeeper, Mr. Sears. The time was kept by Mr. Sears. Sears was an employé of J. Fred Smith. Luten testified he was controlled by the foremen, who told him when to work and when to quit; that these foremen were in charge of the witness. He further states that:

“While I was out on the road Mr. Perkins never told me what to do, when to begin or quit work. Sometimes Mr. Perkins came out there. He did not give me any orders to do anything. * * * I was in charge of McGill, Moore, and Griffith during the time I worked. Mr. Lonnie Sears kept my time while I was out there at work.”

The testimony is fully-borne out by Sears, the bookkeeper, as to keeping the books and signing the checks. This statement might be amplified in details, but we think this sufficient.

The statute under which appellant was convicted punishes the employer in charge of the hands, and this must be in some manner or way by which he may control or have authority over them. The statute punishes if the employer or contractor shall require or permit the laborers to work beyond eight hours. In this case it may be conceded that the witness Luten testified that he worked ten hours, but he testifies appellant had nothing to do with him, and had no control over him; that he never gave him any orders in regard to the work, neither to begin or quit; that he was not controlled by appellant, but by other parties, and the whole testimony shows this to be true. There can be no contention that appellant required the laborers to .work. All the testimony excludes that idea. If appellant is liable, it must be under the other clause of the statute with reference to his permitting the laborers to work more than eight hours. The word “permit” here necessarily carries with it the idea of control or authority over the laborer. If the party having charge of the laborer requires him to work and he does work, he would be guilty. If he had him under his control or authority, and permitted him to work beyond eight hours, he might still be guilty under that phase of the statute. But the word “permit” in the sense in which it is used in this statute pertains to the authority or control of the employer or contractor over the employé or laborer. There must be a corresponding relation by which the laborer works with the.permission of his contractor or employer, or the man who has him under authority. The word “permit” here does not apply generally to the citizenship. If so, then any man who happens to know of the fact that the laborer is working beyond eight hours and does not object to it might be held for permitting that laborer to work. So the statute necessarily carries with it the relation of employer and employe, or the party having charge of the work has also charge of the laborer, with corresponding authority over him. We do not believe the testimony so shows in this case; in fact, it excludes the idea.

The evidence not being sufficient, the judgment is reversed, and the cause remanded.

HARPER, J., absent.
      <gns>For utlier oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, J. DAVIDSON, J.

text:
    KELLEY v. STATE.
    (No. 4162.)
    (Court of Criminal Appeals of Texas.
    Nov. 1, 1916.
    Dissenting Opinion Nov. 22, 1916.)
    1. Criminal Law <&wkey;829(5) — Homicide <&wkey; 96(1) — Assault to Murder — Resistance to Arrest — Instructions.
    One is not justified in resisting officers attempting to arrest Mm if he knew that they were officers and what their purpose was, even though they did not inform him of those facts, and therefore, in a prosecution for assault to murder an officer, it was not error to refuse requested charges that if the officers did not inform defendant who they were, and that they had come to arrest him, he was justified in resisting them, even to the extent of killing them; the court’s charge and other charges given at defendant’s request having fully informed the jury as to defendant’s right to resist an illegal arrest.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. &wkey;>829(5); Homicide, Cent. Dig. § 124; Dec. Dig. &wkey;>
    2. Homicide &wkey;>276 — Assault to Murder— SUEEICIENCY OE EVIDENCE — RESISTANCE TO Arrest.
    In a prosecution for assault to murder an officer, evidence held sufficient to take to the jury the issue whether defendant knew that the other was an officer.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig.. § 569; Dec. Dig. <&wkey;>276.]
    3. Homicide <&wkey;300(3) — Assault to Murder —Instructions—Resistance to Arrest.
    In a prosecution for assault to murder an officer, instructions as to appellant’s right to defend Ms person and an intrusion into his room held sufficient.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 617; Dec. Dig. <&wkey;300(3).] Davidson, J„ dissenting.
    Appeal- from Criminal District Court, Dallas County; W. L, Crawford, Jr., Judge.
    Frank Kelley was convicted of assault to murder, and he appeals.
    Affirmed.
    See, also, 185 S. W. 874.
    W. F. Bane and El. J. Gibson, both of Dallas, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of assault to murder, and his punishment assessed at seven years’ confinement in the state penitentiary.

There are four bills of exception; three to the refusal of the court to give special charges requested, and the fourth embodying appellant’s exceptions to the charge as given. We do not deem it necessary to discuss each of them separately, but rather all four at one time, because they each present the same question, in substance, and that is, the failure of the court to give in charge articles 289 and 290 of the Code of Criminal Procedure, which relate to an officer forcibly entering a house to make an arrest, and in making an arrest, both articles providing that the officer shall make it known that he is an officer, and that he is there for the purpose of making an arrest. Three officers, in citizens’ clothes, went to appellant’s room at night for the purpose of arresting him. They knocked on his door, and he asked, “Is that you, Dave?” The officer replied, “Yes.” Dave was a friend of appellant, whom he was expecting to come to his room, and when appellant opened the door he saw the three officers, one of them having a pistol drawn. He undertook to close the door, and the shooting began, appellant shooting two of the officers, and this convifction is for the act of shooting one of these officers.

Appellant’s contention is that, as these officers testified they did not inform appellant they were officers and there to effect his arrest, he was justified in shooting, and the court should have instructed the jury that it was the duty of .the officers to notify appellant that they were officers and had come to arrest him, and, as they admit they did not do so, the court should have in effect instructed the jury appellant was justifiable in resisting and in shooting the men at Ms door. This is the contention made by appellant in the special charges requested, and in the exception to the charge.

The court tried the case upon the theory that, although these officers did not notify appellant of their purpose, yet, if the jury found (notwithstanding these officers failed to so tell appellant) that appellant was aware they were officers and had come to effect his arrest, appellant would not be justified in shooting the officer, and we think this a correct exposition of the law.

It is true appellant testified he did not know' the men, and he thought they had come to his room to effect a burglary, or for some other unlawful purpose; that they did not notify him they were officers, nor the purpose of their mission, and when they undertook to force an entrance to his room he shot to protect himself and his domicile. If the jury found that state of facts to be true, he should have been acquitted, and this we do not think any one would question.

But the state contends that, although the three men who went to the door and knocked did not explain their purpose to appellant, yet the facts and circumstances in the case are such as to authorize the jury to find that he did know they were officers and they were there to arrest him. And as raising this issue, the state proved, and appellant admitted, that he that night had committed two acts of highway robbery; that the officers went to the door and knocked, and men on an unlawful mission do not generally give notice of their presence on occasions of this character; that appellant, while testifying that he did not know they were officers there to effect his arrest, yet stated after he closed the door he went to the window for the purpose of escaping through the window, and that one defending his residence would not be hunting places to escape; that, when he got his head out of the wifi-dow, an officer stationed there fired at him and grazed the back of his head; that he then exclaimed, “I will surrender,” or, “I will give up.” And we think these facts and circumstances are such as to authorize the court to submit to the jury the issue of whether or not appellant knew they were officers, intending to arrest him, when he shot Officer Smith. It is true, appellant in his testimony would explain these circumstances, yet the court and jury were not compelled to accept his explanation.

Appellant is on trial, and not Officer Smith. Mr. Smith and those with him may not have done their whole duty under the law. Under the law, it may be contended that when they knocked on the door and appellant asked, “Is that you, Dave?” they should have answered, “No, we are officers here to arrest you for the robbery of the Oaywoods and the robbery at the drug store,” but the desperate methods used in the perpetration of these two robberies made the officers aware they would be taking their lives into their hands to have so answered. But their failure to do so would not authorize appellant to shoot them, or either of them, if he was in any way made aware of the fact they were officers and were there to arrest him. It is appellant who is on trial, and it is the information he had and the motive moving him to fire the shots by which he is to be judged, and not the motives of the officers. That the officers did not specifically notify him of their mission would be a circumstance tending to show he had no notice they were officers, and the court admitted the testimony on that theory; yet this is not conclusive proof that he was not aware of their purpose and mission. If he was aware of their purpose in coming to his room — that is, to effect his arrest — he would not be authorized to slay them, no matter how negligent in the performance of their duty they might have been.

The court instructed the jury, after defining properly what would be an illegal arrest:

“In this connection, you are charged that, though you find and believe from the evidence that the defendant was guilty of a felony, yet if he was not at the time about to escape, and there was time for the officers to procure a warrant for his arrest, then you are instructed that said arrest of defendant without a warrant (if they did so arrest him) was illegal, and that defendant had a right to resist same, using such force as was necessary, going even to the extent of killing said Smith and Eimicke or either of them, if such killing was necessary to prevent said, illegal arrest; and if you find and believe under this charge that said arrest was illegal as herein defined, and that the injury inflicted upon the said Erank Smith, if any, was made while resisting arrest, or if you have a reasonable doubt thereof, then you will acquit the defendant and say by your verdict not guilty.”

Again, on the question of using more force than was necessary in effecting the arrest, the court instructed the jury:

“You are hereby instructed at the request of the defendant that though you may find and believe from the evidence that the officers, Smith, Eimicke, and Lane, had information from a credible person that the defendant herein had committed a felony, and though you believe said officers had a lawful right at said time to arrest the defendant, yet if you find and believe from the evidence that the power to arrest was, by them, or either of them, exercised in .such a wanton and menacing manner as to threaten the defendant with loss of life or some serious bodily harm, then you are instructed said defendant had the right to defend himself from such danger or apparent danger as it reasonably appeared to him viewed from his standpoint. And a party, so unlawfully attacked is not bound to retreat in order to avoid the necessity of killing his assailant. If you believe that the defendant, committed the assault as a means of defense against the power to arrest exercised in a wanton and menacing manner, believing at the time he did so (if he did do so) that he was in danger of losing his life or of serious bodily injury at the hands of the said Lane, Smith, and Eimicke or either of them, or if you have a reasonable doubt thereof, then you will acquit the defendant and say by your verdict not guilty.”

In his main charge, the court instructed the jury:

“You are therefore instructed that if you believe from the evidence, or have a reasonable doubt thereof, that the said Erank Smith, or one George Eimicke, or one E. B. Lane, or either or all of them, just previous to the time of the assault, if any, alleged in the indictment, attempted to force an entrance into the room occupied by the defendant; and if you further believe from the evidence, or have a reasonable doubt thereof, that at the time of attempting to force such entrance, if they did attempt to force an entrance, the said Frank Smith or said George Eimicke or said E. B. Lane, or either or all of them, had a pistol or pistols in their hands; and you further believe from the evidence, or have a reasonable doubt thereof, that the defendant saw said pistol or pistols, and that viewed from the defendant’s standpoint and viewed in the light of all the surroundings, facts, and circumstances, the defendant reasonably believed that he was about to be unlawfully attacked and was about to receive death or serious bodily injury at the hands of the said Erank Smith or said George Eimicke or the said E. B. Lane, or either or all of said men, or that the defendant reasonably believed that said Smith, Lane, and Eimicke, or either or all of them, were attempting to enter said room for the purpose of burglary or the commission of a felony, or were attempting to force an unlawful intrusion into the room of defendant, or were attempting to make an unlawful or illegal arrest of the defendant, and that he (the defendant), acting under a reasonable apprehension of such danger, unlawful intrusion, or unlawful arrest, if any, at the time he did shoot said Frank Smith, if the defendant so shot him — then, if you so find, or have a reasonable doubt thereof, you are charged that such assault, if any, committed by the defendant upon the said Frank Smith, if he did so commit it, would be justifiable upon the grounds of his own necessary self-defense or in defense of his personal property or in defense of his domicile, and if you so believe, or have a reasonable doubt concerning such fact, you will acquit the defendant and say by your verdict not guilty.
“You are further charged that if you find and believe from the evidence, or have a reasonable doubt thereof, that at the time the officers Smith, Lane, and Eimicke effected the arrest of the defendant at the rooming house on the corner of Elm and Hawkins streets in the city of Dallas, Tex., the defendant did not know and did not have reasonable ground to believe that said Smith, Lane, and Eimicke were officers attempting to effect the arrest of the defendant at said time and place; and you further find and believe from the evidence, or have a reasonable doubt thereof, that the acts and conduct of said Smith, Lane, and Eimicke, or their acts coupled with their words, at said time and place reasonably created in the mind of the defendant a belief that the said Smith, Lane, or Eimicke were burglars or robbers attempting to force an entrance to his room for the purpose of committing the offense of theft or any other felony, or that such acts or words, or acts coupled with the words of the said Smith, Lane, and Eimicke, or either or all of them, if any, created in the mind of the defendant a reasonable belief that he was about to receive an unlawful attack from the said Smith, Lane, or Eimicke, which placed tie defendant in danger of death or serious bodily injury-then, if you so find, you are instructed that the defendant had the right to use all necessary force to repel such intrusion into his room by said Smith, Lane, and Eimicke, or either or all of them, even going to the extent of taking the life of either or all of said men, and it matters not whether such danger be real or apparent, if it reasonably appeared to- the defendant that such danger did in fact exist.
“If you believe that the defendant committed an assault as charged, if any, as a means of defense, believing at the time he did so (if he did so) that he was in danger of being robbed or of losing his life or of serious bodily injury at the hands of said Smith, Lane and Eimicke, or either of them, or if you have a reasonable doubt thereof, then you will acquit the defendant, and say by your verdict not guilty. * * *
“You are further charged that it matters not whether such danger, if any, did in fact exist; but it is only necessary that the defendant reasonably believed that such danger did in fact exist, and, if acting upon such reasonable belief, the defendant would be justifiable in using all necessary force to protect himself against such danger — whether the danger was either real or apparent.
“You are further charged that if you find and believe from the evidence, or have a reasonable doubt thereof, that the arrest of the defendant by said officers Smith, Lane, and Eimicke was an illegal arrest, or if you further find and believe from the evidence that, viewed from the standpoint of the defendant in the light of all the surroundings and circumstances of the case, the defendant reasonably believed such arrest was an unlawful or an illegal arrest, or if you find that the defendant reasonably believed that said Lane, Eimicke, and Smith were about to make an unlawful intrusion into defendant’s room, then, if you so believe or have a reasonable doubt thereof, you are instructed that' the defendant had the right to use all necessary force in overcoming such, either real or apparent, illegal arrest. or unlawful intrusion, if any, or such arrest as the defendant reasonably believed to be . unlawful or illegal.
“You are further charged that, in passing upon the defendant’s case, the jury should view all of the facts from the defendant’s standpoint. Each juror should place himself as nearly as may be in the position of the defendant at the time of the assault, if any, and determine from all of the facts and circumstances and surroundings as they appeared to'defendant at the time of the assault, if any, whether an apprehension or a fear of death or serious bodily harm was reasonable; and, if you so find, you should acquit the defendant and say by your verdict not guilty.”

. Having thus instructed the jury, we do not think they could possibly have been misled as to appellant’s right to defend his person and an intrusion into his room, if he did not know they were officers and their mission was to arrest him for the robberies committed by him that night.

The judgment is affirmed.

DAYIDSON, J. I cannot concur in this affirmance.

DAVIDSON, J.

(dissenting). I disagreed with my Brethren on the affirmance. They, held the charge .was sufficient, and the case correctly tried. The evidence demonstrates that appellant after midnight, in the “wee small hours of the morning,” was at his hotel in his room retired for the night; that he was aroused by some one at his door. He asked if that was his friend and companion, calling his name. He was informed that the caller was the friend mentioned. He opened the door to admit him, and was confronted by three strangers in citizens or “plain clothes,” who testified on the trial they were officers in “plain clothes.” They were entire strangers to him. They had no warrant for the arrest of appellant. They went to his room at that late hour of the night on information they had received of his whereabouts. It seems that sometime early the same night appellant and his friend had committed robbery in Oak Cliff, and officers were seeking his arrest. One of the “plain clothes” officers undertook to enter. They were armed, and the shooting began. One of the officers was wounded. I cannot agree with my Brethreh that ap-i pellant knew that these parties were officers and he was trying to make his escape. They had no warrant for his arrest and misled him by making the statement that the speaker was his friend. This was not true, and admitted by the witnesses in testifying to be untrue. They were all strangers to' appellant. They knocked at his door long after midnight, with nothing to indicate to him their official rank or why they were there. They did not notify him at any time of their official rank or their purpose, but misled him by the speaker telling him that he .was his looked-for friend. The majority seem to place this upon the theory that the . officers were authorized to pursue and arrest appellant without a warrant or to notify him of the fact that they were officers at his room at that time of the night. This is not the law in Texas. There is nothing to indicate that he was escaping, or trying to escape. He was in bed locked in his room for the night, with no purpose indicated in this record of getting out of that room or bed. He had left the place of the alleged robbery in Oak Cliff, and had come to Dallas and retired for the night. This was not indicative of flight or seeking to escape. If appellant knew they were officers, we might have a different proposition; but there is nothing to indicate that he so knew. In fact, the evidence demonstrates the contrary. Not only so, but until he opened the door he believed otherwise. There .was nothing to indicate to him the purpose of the visit of three men, and they did not disclose their purpose. So far as he is concerned, they may have come to him as robbers or people intending to do him violence, and he could readily have so believed. The last and most remote conjecture that would come to his mind was that they were officers. They had ample opportunity to so inform him, but not only did not, but misled him by stating what was not true.

It is but a natural conclusion: First, that the spokesman was his friend. Second, that he was intentionally misled. Third, that he was not hailed by officers as such. Fourth, that strangers coming to his room at an unseemly late hour were bent on purposes unknown but suspicious to appellant. Fifth, those strangers had as much time to inform appellant why they were there and their mission and who they .were as they did to mislead and falsify as to who they were and why they were there. Sixth, it is evident he was misled and did not know who they were, but believed the speaker to be his friend. Seventh, these officers could have as readily and easily told him the truth as to who they were and their mission as they did to mislead him; it would have taken no more time and brought less trouble. Eighth, the statute requires officers to notify appellant of their presence and official character 'and- purpose. Ninth, the law did not and does not authorize officers to misinform and mislead, but it does require them to give notice of their reasons for calling at night under such circumstances as indicated in this record. That there may be no mistake about it, I quote article 2S9, Vernon’s Criminal Procedure, p. 143:

“In case of felony, the officer may break down the door of any house for the purpose of effecting an arrest, if he be refused admittance, after giving notice of his authority and purpose.”

Apropos of this, they did not notify appellant of their mission for arrest; he did not refuse them admittance, thinking they were his friends; nor did the officers give notice of their authority or purpose, but, on the contrary, told him they .were somebody else. Article 290 may also be cited here;

“In executing a warrant of arrest, it shall always be made known to the person accused under what authority the arrest is made] and, if requested, the warrant shall be exhibited to him.”

There was no warrant in the hands of the officers in this instance, and, of course, none exhibited, and not only that, but appellant was not aware of the fact they were officers, because they misled him as to their identity and purpose. While the court charged in a general way that, if appellant knew they were officers, he had no right to resist. The state’s contention was, after the shooting was over he ran to a window to get out and get away, and that he discovered some officers on the outside dressed in official clothes, and dating back from that discovery they charged him with notice of the fact he knew who the three men at the door were. This is rather a violent presumption against the facts and against the law and against the innocence of the accused. The accused is to be tried from his standpoint of view. There was nothing to indicate the officers could not obtain a warrant before his escape, because the man was in bed, and was not trying to escape; but the court charged that if the defendant was not aware, or if there was a reasonable doubt of the fact that* he was not aware, they were officers, he .would not be guilty of resisting arrest. This was a direct thrust at his right of defending himself from his bedroom at night against unknown trespassers or men he believed to be trespassers, and in charging the law it must be favorably given to defendant as he viewed it. If appellant was not aware that these officers came to arrest him, or there was a doubt about it, he had the right to resist. These officers could have informed him of their mission, but did not. They had ample time to do so, and this is demonstrated by the fact that they called twice to appellant before he answered, and when he did answer they misled him as to who they .were, and obtained entrance to his door under the theory that he was admitting his friend and associate. It would hardly justify discussion to arrive at the conclusion that the officers had as much time to notify him they were officers and wanted to arrest him, and therefore ask admittance, as they did to mislead him as to who they were. I do not care to pursue this matter further.

There are other matters in the record, but I do not understand how this defendant has had a fair trial under this record and under the statutory laws of this state. I cannot therefore agree to the affirmance. I do not believe the decision correct. I respectfully enter my dissent.
      <¡&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes