author: SPEER, J.

text:
    TEXAS CENT. R. CO. v. NEILL et al.
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 21, 1913.
    Rehearing Denied Oct. 18, 1913.)
    1. Master and Servant (§ 205) — Master’s Duty.
    An employé may assume on entering the employment that his employer has performed every duty which the law or the contract of employment imposes, in the absence of contrary knowledge.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 547-549; Dee. Dig. 205.]
    2. Master and Servant (§§ 101, 102, 205)— Master’s Duty — Instrumentalities of Work.
    An employer is only required to exercise ordinary care to furnish safe appliances, instru-mentalities, etc., of work, and is not under an absolute duty to do so, and hence the employé may only assume that his employer will use reasonable care to discharge such duty.
    [Ed. Note. — For other eases, see -Master and Servant, Cent. Dig. §§ 135, 171, 174, 178-184, 192, 547-549;, Dec. Dig. §§ 101, 102, 205.]
    3. Master and Servant (§ 293) — Injuries— Instructions.
    The court instructed, in an action for a railroad engineer’s death by derailment after a heavy rain, that if the company’s rules required section foremen to inspect the roadbed, culverts, etc., after storms, and during rains, if continuous, for the purpose of locating unsafe places and warning trains thereof, and if decedent knew of such rules, then he could rely upon such inspection being made, and notice being given to him of any washouts, and if he was not warned and received no notice of the washout in question, he could assume that the track was safe. Held, that the instruction was erroneous as charging that the company owed decedent the absolute duty to inspect the track, etc., and notify decedent of the defect resulting, in the derailment, regardless of the time intervening between the rain and the accident.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1148-1156, 1158-1160; Dec. Dig. § 293.]
    4. Trial (§ 251) — Instructions—Applica-' bility to Issues.
    An instruction, in an action for a railroad engineer’s death by derailment because of a washout at a culvert, that decedent could rely on the inspection of the roadbed after a heavy rain pursuant to the company’s rules, and could assume that the track was in a safe condition if not warned to the contrary after inspection, was erroneous as prejudicing the defense of contributory negligence, where the petition admitted that decedent discovered the dangerous condition and remained on the engine for the sake of the passengers.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. § 251.]
    5. Master and Servant (§ 286) — Injuries-Jury Question — Negligence.
    Evidence, in an action for the death of a railroad engineer by derailment after a washout, held to make it a jury question whether the company, in the exercise of ordinary care, should have inspected the tracks and notified decedent of the defect before the accident occurred.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. § 286.]
    6. Appeal and Error (§ 1064) — Harmless Error — Conflicting Instructions.
    A case should be reversed where the different parts of a charge are contradictory upon a material issue.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. § 1064.]
    7. Master and Servant (§ 124) — Master’s Duty — Inspectio n .
    The employer’s duty to furnish reasonably safe tools and place of work implies a further duty of seasonably inspecting them.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 235-242; Dec. Dig. § 124.]
    8. Release (§ 17) — Validity—False Representations.
    If representations made to secure a release for liability because of personal injuries were in fact false, the fact that the person making them believed them to be true would not prevent the injured person from having the release set aside.
    [Ed. Note. — For other cases, see Release, Cent. Dig. § 32; Dec. Dig. § 17.]
    9. Appeal and Error (§ 758) — Brief—Objection to Evidence.
    Error cannot be claimed in sustaining an objection to questions to a witness, where appellant’s brief does not show what objections were sustained, or what the proposed evidence was, or whether it would have been admissible.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3093; Dec. Dig. § 758.]
    Appeal from District Court, Shackelford County; Thomas L. Blanton, Judge.
    Action by Charles T. Neill continued on his death by his widow and minor children, against the Texas Central Railroad Company. From a judgment for plaintiffs, defendant appeals.
    Reversed and remanded.
    W. T. Andrews, of Stamford, Spell & Sanford, of Waco, and Alexander S. Coke, of Dallas, for appellant. W. L. Morris, of Albany, and W. L. Eason and Hamilton & Kibler, all of Waco, for appellees.

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

   SPEER, J.

This suit was originally filed by Chas. T. Neill to recover damages for personal injuries received by him through the alleged negligence of the defendant Texas Central Railway Company. Neill subsequently died and his surviving widow and minor children were substituted as plaintiffs. There was a verdict and judgment for the plaintiffs, and the defendant has appealed.

The deceased was a passenger engineer on one of the trains of appellant, and received the injuries from which death is alleged to have resulted through the derailment and overturning of his engine at a small creek or water course on the defendant’s line. Briefly stated, the issues were: (1) Negligence of the company in failing to construct a sufficient culvert for the drainage of the stream in the first place; (2) negligence of the company in failing properly to inspect the roadbed and culvert, and to notify plaintiff after a heavy rain which had fallen the night before; (3) release and settlement by the deceased; (4) assumed risk; (5) contributory negligence; (6) and that the accident was the result of the act of God.

Many of appellant’s assignments need only to be considered in a general way, since the case is to be reversed, and many of the questions complained of will hardly arise on another trial.

Upon the trial the following instruction was read: “If you believe from the evidence that at the time of, or prior to, the accident in question the defendant had promulgated and there was then in force certain of its rules and regulations requiring all section foremen on their respective sections to make an inspection of the defendant’s roadbed, bridges, and culverts after rains or storms, and during rains, if continuous, for the purpose of locating washouts and other unsafe places in such tracks, roadbed, bridges, and culverts, and if any were found, to place a flagman at same to warn trains thereof, and also to wire train dispatchers of defendant of such washouts or unsafe places, and that such train dispatchers were required to put out train orders to all engineers in charge of trains scheduled to pass such washouts and other unsafe places, advising them of the same, and if you further believe from the evidence that Ohas. T. Neill knew of such rules and regulations at and prior to the accident in question, then and in such event you are instructed that the said Neill had the right to rely upon such inspection being made and notice given him of any washouts or other unsafe places in defendant’s track, roadbed, bridges, and culverts, and in this connection you are further instructed that if you believe from the evidence' no flagman was at washout to warn said Neill thereof, and that he received no notice by wire advising him of the same, then and in such event, you are instructed that the said Neill had the right to assume that the track, roadbed, bridges, and culverts were in a safe condition as to washouts and other unsafe places.”

It is, of course, true that the servant upon entering the employment of the master may assume that the latter has performed every duty which the law or the contract of employment imposes upon him, in the absence of knowledge to the contrary. The law does not make the master an insurer of the servant, and does not, therefore, impose upon him the absolute duty of furnishing safe tools, appliances, places, and the like, but at most requires of him only the exercise of ordinary care in these respects. Logically it follows, then, that the employé has the right to assume only that the employer will use reasonable care in discharging his duty, whether that duty appertains to furnishing safe instrumentalities in the first place, or to subsequent inspection and repairs to keep them so. We apprehend no one could be found who would insist that a charge was correct which instructed the jury that the appellant owed the deceased the absolute duty to inspect its culvert, regardless of the time intervening between the rain and the accident, and if found to be unsafe to notify deceased, yet this is exactly what the charge in the present case in effect does. If deceased had the right to assume that such inspection had been made, it was so because such was the bounden duty of appellant. Such we have seen is not the case, and the court erred in the instruction given, which necessarily had the effect to impose too great a burden on appellant.

The instruction is erroneous for another reason. Appellant interposed a plea of contributory negligence. Appellee’s petition contained allegations, in effect, admitting that deceased discovered the dangerous condition of the track, but yet stayed on his engine for the sake of his .passengers. That issue was submitted to the jury; the effect of the charge being criticised was to prejudice this defense. It was for the jury to say whether or not, in the exercise of ordinary care for his own safety, deceased might assume that an inspection had been made. The rain causing the washout had fallen about midnight. The section foreman whose duty it was to inspect the tracks usually went to work about 7 a. m. He lived in Albany a few miles away. The accident occurred about 7 a. m. In the very nature of the duty which appellant owed to appellee, a reasonable time must be allowed to it in which to inspect the tracks after a rainfall. The deceased was chargeable with knowledge of this fact. The deceased could see that a heavy rain had fallen. It, therefore, became a question of fact whether, in the exercise of ordinary care, appellant company would have inspected its tracks and notified deceased of the washout in so short a time. See Louisville & N. R. Co. v. Banks, 104 Ala. 471, 31 South. 573.

It is true in other portions of the charge the appellees were permitted to recover if appellant failed to exercise ordinary care in the matter of inspecting its tracks and reporting the washout. And further, in a special charge given at the request of appellant, the jury were told, in effect, that such failure to inspect must have been negligent before the plaintiffs could recover on that issue. This, however, in the view we take of the charge quoted, amounts at most only to a contradiction, and the rule is in such a case to reverse where the different parts of a charge are contradictory upon a material issue. So. Kansas Ry. Co. v. Sage, 98 Tex. 438, 84 S. W. 814.

The general duty to exercise care to furnish reasonably safe tools and places postulates the duty seasonably to inspect them, for in no other way can that primary duty be performed, and this fact, perhaps, gives rise to the fugitive expressions so often found that the duty to inspect is absolute, yet in the very nature of things the frequency with which inspections are to be made to maintain the safety of such implements or place is peculiarly a question of ordinary care to be determined as one of fact by the jury. The effect of the instruction which we have condemned was to charge appellant, as matter of law, with negligence in not having inspected its track after the rain, which had fallen only a few hours before; in short, to require an inspection whether a reasonable time had elapsed or not. Such a requirement is unreasonable.

The point is raised in several ways that the settlement and release of deceased for §1,500 was binding upon appellees, in the absence of fraud or bad faith on the part of appellant’s agents, whose representations induced the settlement. It can make no difference that appellant’s agents believed the representations to' be true which they made to induce deceased to execute the release. If the same were in fact false, appellees were entitled to relief against them. M., K. & T. Ry. Co. v. Reno, 146 S. W. 207; G., C. & S. F. Ry. Co. v. Huyett, 49 Tex. Civ. App. 395, 108 S. W. 502.

The question of the applicability of the federal Employers’ Liability Act could not be raised by special exception, as was sought to be done, since appellee’s pleadings showed a ease of liability under our state statute. St. L., S. & F. Ry. Co. v. Seale, 229 U. S. 156, 33 Sup. Ct. 651, 57 L. Ed. ; K. C., M. & O. Ry. Co. v. Pope, 152 S. W. 185; s. c., 153 S. W. 163.

Neither is any error made to appear in in the twenty-third assignment, complaining of the court’s action in sustaining objections to interrogatories propounded to the witness Russell, “which interrogatories and answers would have elicited information in reference to the defendant being a carrier of interstate commerce,” etc., since the brief fails to show what objections the court sustained, or what the proposed testimony was, and whether it would, in any event, have been admissible. But this and the matter last discussed may be more specially presented to the trial court on another trial. We have carefully examined all assignments, many of which we here take occasion to say are so general as not to present any question whatever for decision, but have concluded that no error other than the one discussed was committed.

Reversed and remanded.


source: Caselaw Access Project

author: PRENDERGAST, P. J.

license: Public Domain

text:
    Ex parte MARTIN.
    (Court of Criminal Appeals of Texas.
    Oct. 14, 1913.)
    Bail £§ 53)—Amount.
    Where, in a prosecution for murder, defendant was entitled to bail, and bail was fixed at §7,500, but it appeared that defendant’s father was dead, that he had no relations or property from which to secure a bond, but that some of his friends, who were able, had agreed to sign a bond for an amount not greater than $2,500, the bail would be reduced to that sum.
    [Ed. Note.—For other cases, see Bail, Cent. Dig. § 211; Dec. Dig. § 53.]
    Appeal from District Court, Brooks County; W. B. Hopkins, Judge.
    Frank Martin was indicted for murder. From an order on a habeas corpus hearing fixing his bail at $7,500, he appeals, to have the same reduced.
    Reversed, with instructions to admit petitioner to bail in the sum of $2,500.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, P. J.

Appellant in this case was indicted for murder. Upon a ha-beas corpus hearing the district judge properly held he was entitled to bail, but fixed his bond at $7,500. This appeal is prosecuted with a view of having the amount of the bail reduced, claiming the amount fixed is excessive.

The evidence on this point showed that the appellant’s father was dead, and that he had no relatives or property with which to secure his bond; that some of his friends, who are able, had determined that they would sign his bond, but not for a greater amount than $2,500. Upon consideration of the whole evidence, we have reached the conclusion that his bail should be and is, fixed in the sum of $2,500.

The judgment of the lower court is therefore reversed, with instructions that, upon his execution of the proper bond in said sum, he shall be discharged as provided by law.


text:
    GREEN v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 15, 1913.)
    Ceiminal Haw (§ 1099) — Appeal— Statement of Pacts — Necessity of Appeoval.
    On appeal in a criminal case, a statement of facts, not approved by the trial judge, cannot be considered.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dee. Dig. § 1099.]
    Appeal from Shelby County Court; Edgar W. Hooker, Judge.
    Moody Green was convicted of using abusive language, and he appeals.
    Affirmed.
    T. H. Postell, of Center, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, P. J.

Prom a conviction and fine of $25 for abusive language, under article 1020, P. C., appellant appeals.

The indictment is good under the statute and decisions and form laid down by Judge White, and the court correctly overruled appellant’s motion to quash it. Foreman v. State, 31 Tex. Cr. R. 477, 20 S. W. 1109; Trezevant v. State, 47 Tex. Cr. R. 502, 84 S. W. 828; Menasco v. State, 32 Tex. Cr. R. 582, 25 S. W. 422; Bryson v. State, 39 S. W. 365; White’s Ann. P. C. § 986.

There is a suggestion by the Assistant Attorney General that the file marks on the purported statement of facts and bills of exception have been tampered with; that they show to have been filed in the court below on May 27, 1913, and then the “7” erased and “3” placed instead. The court below adjourned on May 3, 1913, and, even if 20 days had been allowed to file these papers, filing on May 27th would be too late, and he moves to strike out all these papers.

What purports to be a statement of facts has not been approved by the county judge. It cannot be considered. See cases cited by Branch Cr. Law, § 40. Without a statement of facts, none of appellant’s bills are in a condition to be passed on by this court.

The judgment will be affirmed.


author: HARPER, J.

text:
    WOODS v. STATE.
    (Court of Criminal Appeals of Texas.
    June 25, 1913.
    Rehearing Denied Oct. 29, 1913.)
    Homicide (§ 310*) — Assault with Intent to Kill — Submission of Lessee Offenses— “Insult to a Female Relative.”
    Calling a man a “son of a bitch” is not an “insult to a female relative” within the statute relative to manslaughter, and hence, on a trial for assault to murder, evidence that the assaulted person applied this epithet to accused did not require the submission of aggravated assault from the viewpoint that, if death had ensued, the crime would have been only manslaughter.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 657-661; Dee. Dig. § 310.*]
    Appeal from District Court, Palo Pinto County; W. J. Oxford, Judge.
    Horace Woods was convicted of assault to murder, and he appeals.
    Affirmed.
    Jordan Cummings, of Ft. Worth, Jno. W. Moyers, of Mineral Wells, P. C. Sanders, of Palo Pinto, and W. F. Ramsey and C. L. Black, both of Austin, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

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

There are but two grounds in the motion for new trial; one alleging the insufficiency of the evidence. We have carefully read the statement of facts and are of the opinion that the evidence supports the verdict. The other ground contends that, while the court did submit the issue of aggravated assault, he should also have submitted it from the viewpoint that if death had resulted, and the offense was of no graver grade than manslaughter, then appellant would only be guilty of aggravated assault. If the. evidence presents the issue of “adequate cause,” then appellant’s contention would be sound. To place the matter in the most favorable light to appellant, appellant testified on the trial that the alleged injured person, S. B. Davis, and another charged him with drinking on the train; that they had been summoned before the grand jury and would report him. Words ensued, when appellant claims Davis cursed him and called him a cowardly s-n of a b-h; other words followed, when they parted. Appellant came back in about 40 minutes and said to Davis, “I do not like what you said and want you to apologize,” when Davis replied, “I will not do it, you damned s-n of a bitch,” and raised his hand, when he (appellant) struck him with a knife. This would not be adequate cause to reduce an unlawful homicide to the degree of manslaughter and would not present that issue. Calling a man a son of a bitch is not an insult to a female relative within the purview of our statute, as has been held in a number of cases.

The judgment is affirmed.


author: DAVIDSON, P. J.

text:
    THOMAS v. STATE.
    (Court of Criminal Appeals of Texas.
    June 18, 1913.
    Rehearing Denied Oct. 22, 1913.)
    1. Ceiminal Law (§ 1099*) — Appeal— Statement of Facts — Time of Filing.
    Where court adjourned on January 4th, after judgment of conviction, a statement of facts not filed until April 14th was filed too late, and cannot be considered on appeal.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.]
    2. Homicide (§ 308)—Instructions—Second Degree Murder.
    An instruction on second degree murder, that, if the jury believed beyond a reasonable doubt that accused, “in a sudden transport of passion,” roused without adequate cause, and mot in self-deibnse, cut and killed decedent, they should convict, was not erroneous, on the ground that the quoted phrase required accused to .be laboring under a greater mental strain than the law required.
    [Ed. Note.—For other cases, see Homicide, Cent. Dig. §§ 642-647; Dec. Dig. § 308.]
    3. Criminal Law (§ 1122)—Appeai^-State-ment op Facts—Effect of Absence.
    In the absence of a statement of facts, the Court of Criminal Appeals cannot determine whether an instruction on second degree murder was erroneous, or even determine whether second degree murder was in the case under the evidence.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2940-2945; Dec. Dig. § 1122.]
    4. Criminal Law (§ 1144) — Review — Instructions— Self-Defense.
    It cannot be said that an instruction on self-defense, which charged that the jury might consider the relative strength of the parties and the accused’s knowledge of the character and ■disposition, of the party about to attack him which reasonably produced a fear of death, etc., was erroneous, in the absence of a statement of facts, since the evidence might have made such' a charge proper.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2736-2764, 2766-2771, 2774-2781, 2901, 3016-3037; Dec. Dig-. § 1144.]
    Appeal from District Court, Grayson County; W. M. Peck, Judge.
    Ben Thomas was convicted of first degree murder, and he appeals.
    Affirmed.
    J. L. Cobb, of Sherman, and A. S. Baskett, of Dallas, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, P. J.

Appellant was convicted of murder in the first degree, and the death penalty assessed. This is the second appeal. On the former appeal (63 Tex. Cr. R. 98, 138 S. W. 1018) a judgment was reversed, wherein the jury had assessed a lifetime imprisonment for murder in the first degree.

This record is in such condition that under the decisions qf this court the questions presented for revision cannot be intelligently reviewed, for the reason that the statement of facts was filed at so late a date that same cannot be considered. The court adjourned on the 4th day of January, 1913; the statement of facts was filed on the 14th day of April, same year. Under the decisions and the law as construed in many cases the statement of facts was filed too late. Without the statement of facts, the questions cannot be reviewed.

It is contended that the charge on murder in the second degree is not sufficient. After giving the usual definitions of malice, malice aforethought and implied malice, which is characterized by want of evidence to show express malice on one side, and extenuation, mitigation, or justification on the other, the court applies the law as follows : “If you believe from the evidence beyond a reasonable doubt that the defendant, with a knife, which was then and there a deadly weapon, or instrument reasonably calculated and likely to produce death by the mode qnd manner of its' use, in a sudden transport of passion, aroused without adequate cause, and not in defense of himself against an unlawful attack reasonably producing a rational fear or expectation of death or serious bodily injury, with the intent to kill, did cut and stab with said knife and thereby kill M. P. Crane, as charged in the indictment, you will find him guilty of murder in the second degree,” etc. It is urged that the expression “in a sudden transport of passion” is objectionable, and required the defendant to be laboring under greater mental strain than authorized by the law. In the Kannamacher Case, 51 Tex. Cr. R. 124, 101 S. W. 238, and some other cases, this was held to be an erroneous limitation; but in Water’s Case, 54 Tex. Cr. R. 322, 114 S. W. 628, Puryear’s Case, 56 Tex. Cr. R. 235, 118 S. W. 1042, Clark’s Case, 51 Tex. Cr. R. 519, 102 S. W. 1136, and Jay’s Case, 56 Tex. Cr. R. 111, 120 S. W. 449, it was held not to be error.

The second objection was: The charge does not expressly require that the killing be either unlawful or upon implied malice, 'or upon malice at all. This charge, applying the law to the facts, does not contain either the word “unlawful” or the expression “upon malice,” or “malice aforethought,” or “implied malice”; still, under the decisions, this charge seems to be sufficient, in that, with the remaining portion of the quoted charge, all the elements of murder in the second degree are charged. This seems to be borne out by Puryear v. State, 56 Tex. Cr. R. 231, at page 235, 118 S. W. 1042, and Davis v. State, 57 Tex. Cr. R. 545, 124 S. W. 104. In the recent case of Roberts v. State, 156 S. W. 651, a charge on murder in the second degree was held vicious, following Miles v. State, 18 Tex. App. 156. The charge, however, in that ease was different from the charge here given. In that case the court charged the jury that malice will be implied from an unlawful killing, and then followed that charge in applying the law directly to the facts, omitting these limitations that are set out in the charge here given, to wit, not under passion aroused by adequate cause, not in defense of himself against an unlawful attack reasonably producing a fear or expectation of death or serious bodily injury. In the charge in the Roberts Case, supra, applying the law to the facts, there was no limitation on murder in the second degree, so far as manslaughter was concerned, and the two charges there taken together, first, where the court instructed the jury that malice will be implied from an unlawful hilling, and in the second application, omitting manslaughter from it, that charge was held to be error. Under the authorities cited it would seem this charge is not of sufficient erroneous importance to require a reversal of the judgment, especially in the absence of a statement of facts. Without the statement of facts before us, we are unable to say that murder in the second degree was even in the case, and any charge upon it may have been beneficial to appellant.

The charge on self-defense is also attached, inasmuch as the jury was instructed that they might look to the relative strength of the parties and of defendant’s knowledge of the character and disposition of the party making or about to make an attack which reasonably produced a fear or expectation of death or serious bodily injury. In the absence of a statement- of facts, this charge may have been applicable to the evidence and directly called for by the facts; at least there is nothing, as the record is before us, to justify us in holding it reversible.

The judgment is affirmed.


text:
    CHISM v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 15, 1913.)
    1. Criminal Law (§ 518) — Evidence—Confessions — Necessity of Caution and Reduction to Writing.
    On a trial for gambling, a statement by accused to the deputy sheriff, after his arrest and while he was being taken to jail, that he and another had been gaming but that a third one of those arrested had nothing to do with the game, was inadmissible, where it appeared that accused had not been warned that his statement would be used in evidence against him, and that it was not reduced to writing and signed by 'him.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1157-1162; Dec. Dig. 518.]-
    2. Criminal Law (§ 448) — Evidence — Conclusions and Matters of Opinion.
    On a trial for gambling, the testimony of a witness that he was certain accused and others were gambling, that they acted like it, or at least that that was his opinion, but that he did not see any hand played by accused nor any money bet, should have been excluded; since, while the witness could state what was done by the parties, he could not give his opinion or conclusion from their acts.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1035-1039, 1041-1043, 1045, 1048-1051; Dec. Dig. § 448.]

    Appeal from Tarrant County Court; R. E. Bratton, Judge.
    Oliver Chism was convicted of gambling, and he appeals.
    Reversed and remanded.
    W. E. Myres and M. B. Simpson, both of Ft. Worth, 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, P. J.

Appellant was convicted of gambling.

The state’s case was circumstantial that appellant was engaged in gambling. This was positively denied by appellant in his testimony and by other witnesses. In rebuttal the state introduced the witness Buck Williams, deputy sheriff, who had previously testified in the case, and by him proved as follows, as shown by bill of exceptions: “After we arrested the defendant and the two Smiths for gaming, and while we were taking them to jail, and after we had got about half mile where we arrested them, the defendant told me that he and the witness Will Smith had been gaming, and that Jim Smith had nothing to do with the game. At the time this statement was made to me by the defendant, he had not been warned that his statement would be used in evidence against him, nor was his statement reduced to writing and signed by him.” Appellant reserved all sorts of exceptions, among others, that the testimony showed, at the time the conversation was had between the deputy sheriff and himself, he was under arrest and en route to jail, was in charge of the officers and the statement introduced was in the nature of a confession by defendant to the officer; that the defendant had not been warned as the law required; and that the statement was not reduced to writing and signed by him in obedience to the statute; and that before the confession of the defendant could be introduced against him these things must occur. This is one of the bills and illustrates the issues presented in the other bills of exception. It is therefore unnecessary to discuss but one of the bills. The exceptions are well taken. The confession, under the circumstances stated, was inadmissible. Before a confession can be used under circumstances here detailed, the witness must not only be warned, but that statement must be reduced to writing in accordance with the statute. The objection should have been sustained and the testimony excluded.

It is unnecessary to discuss the other bills of exception. One of the bills sets out practically the same character of testimony as the above, and under the same circumstances, but from a different officer. The remaining bill of exception is to the effect that the witness McCain was permitted over appellant’s objection to state his opinion as to what the parties were doing at the time they saw them in the house before they were arrested. The language employed by the witness is as follows: “I am certain they were gambling; they acted like it, or at least that is my opinion. However, I did not see any hand played by defendant, nor did X see -any money bet.” As this testimony is expressed, we are of opinion it should not have been permitted to go to tbe jury. The witness could state what was being done by the parties at the time he first saw them, but not his opinion or his conclusion from the acts. The acts were facts he might detail, but his opinion was not a fact, and conclusion to be arrived at was not for the witness but for the jury.

The judgment is reversed, and the cause is remanded.


text:
    DAY v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 15, 1913.)
    Embezzlement (§ 48) — 'Trial—Instructions.
    In a prosecution for embezzlement, where accused admitted the embezzlement, but testified that he never took more than $50 at one time, it was error to refuse to instruct that he could only be convicted of a misdemeanor if the jury should find that he never took more than $50 at one time.
    [Ed. Note. — For other cases, see Embezzlement, Cent. Dig. §§ 72-75; Dec. Dig. § 48.]
    Appeal from District Court, Wichita County; P. A. Martin, Judge.
    F. H. Day was convicted of embezzling a sum in excess of $50, and he appeals.
    Reversed and remanded.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted of embezzlement of a sum in excess of $50, and his punishment assessed at two years’ confinement in the state penitentiary.

Many grounds.are relied on to secure a reversal of this case, and we have carefully considered each of them; but only one of the grounds presents error. That appellant embezzled the money of the Chamber of Commerce of Wichita Falls is proven beyond doubt, in fact is admitted by him in his testimony, yet he testified he appropriated at no one time as much as $50. He testified: “I have never denied I used the money of the Chamber of Commerce; I admitted it to the Chamber of Commerce, but in sums never in excess of $50 at any one time.” On cross-examination this question was gone into extensively, and appellant reiterated time and again that he at no one time appropriated as much as $50. Of course, the state’s testimony would support a finding that he did appropriate more than $50 at one time; but his testimony raised the issue. The court may have, and doubtless did give, but little credence to his testimony, and, if the issue had been submitted to the jury, they, also, might have found it not true. But under the laws of this state appellant was entitled to have that issue submitted to the jury. Appellant requested the court to give the following special charge: “You are charged in this connection that, if you believe from the evidence that the defendant was an officer of the Chamber of Commerce of Wichita Falls, Texas, and as such officer there came into his possession and-under his control certain money belonging to said Chamber of Commerce, and if you further believe from the evidence beyond a reasonable [doubt] that the defendant did fraudulently misapply said money to his own use and benefit, and without the consent of the officers and board of directors of the Chamber of Commerce, and with the fraudulent intent to deprive the Chamber of Commerce of the use and benefit thereof, and if you further believe from the evidence that the defendant did not misapply at any one time an amount of money exceeding, or less than, fifty dollars, then you will find the defendant guilty of a misdemeanor, and assess his punishment by imprisonment in the county jail not to exceed two years, and by fine not exceeding five hundred dollars, or by such imprisonment without the fine.” This charge should have been given.

The judgment is reversed, and the cause remanded.


text:
    CANNAN v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 15, 1913.)
    Intoxicating Liquors (§ 224*) — Criminal Prosecutions — Burden of Proof.
    On a trial for violating the local option law, the burden is on the state to prove beyond a reasonable doubt that the beverage sold would produce intoxication, and it was error to charge that the burden was on the state in the first instance to prove that beer was sold, whereupon the burden shifted to defendant to prove that the beer so sold was not intoxicating.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 275-281; Dee. Dig. § 224.*]
    Appeal from Brazoria County Court; J. W. Munson, Judge.
    Oswell Cannan was convicted of violating the local option law, and he appeals.
    Reversed and remanded.
    Masterson & Rucks and W. T. Williams,' all of Angleton, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was prosecuted and convicted of violating the local option law.

Jim Booth and Glen Hanna testified that appellant sold beer to Jim Booth; that the beer was intoxicating. Appellant virtually admits selling a malt drink to Booth but says it was a nonintoxicating drink. E. P. I-Ioefle testified that the beverage sold had a different effect and taste from such beers as Budweiser, Schlitz, Blue Ribbon, Pabst, or any other beer sold in saloons. That it was a malt beverage of very low grade and would not intoxicate. This in substance was also the testimony of J. O. Fredricks and R. E. L. Stringfellow. It is thus seen that the only issue to determine was whether or not the beverage sold was an intoxicant. The court charged the jury: “You are further charged that the burden of proof is on the state, in the first instance, to prove beyond a reasonable doubt that beer was sold, if any, as alleged in the information in this case, after which the burden of proof shifts to the defendant, and it then devolves upon the defendant to prove that such beer so sold, if any, was not intoxicating.” This is not the law. The burden of proof was on the state to prove beyond a reasonable doubt that the beverage sold would produce intoxication, and the court committed material error in instructing the jury that the burden of proof was on defendant to prove that the beer sold was not intoxicating.

There are a number of other grounds in the motion for new trial, but there was no error committed in admitting and rejecting testimony, and the charge of the court, together with the special charges given, sufficiently presented the case, except that the burden of proving that the beverage sold was not intoxicating was erroneously placed on defendant.

The judgment is reversed, and the cause remanded.


author: DAVIDSON, J.

text:
    HEIDELBERG v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 15, 1913.)
    1. Ceimin^l Law (§ 1090) — Appeal—Neces: sity oe Bills oe Exception.
    The denial of a motion for a new trial based on the argument of counsel could not be reviewed in the absence of a bill of exceptions; it being impossible to ascertain what language was used or the conditions that surrounded it.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 27S9, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dee. Dig. § 1090.]
    2. Homicide (§ 308) — Sueeiciency oe Evidence-Murder in the Second Degree.
    Evidence, in a homicide case tried under the old law of murder, held to require the submission of murder in the second degree as well as murder in the first degree and self-defense.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 642-647; Dec. Dig. § 308.]
    3. Homicide (§ 308) — Sueeiciency oe Evidence-Murder in the Second Degree.
    To justify the court on a trial for homicide in failing to charge on murder in the second degree, the evidence must be sufficiently cogent to exclude that degree.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 642-647; Dec. Dig. § 308.]
    Appeal from District Court, Newton County; A. E. Davis, Judge.
    Cal Heidelberg was convicted of murder in the first degree, and he appeals.
    Reversed and remanded.
    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

   DAVIDSON, J.

Appellant raised four questions on motion for new trial. The first cannot be considered in the absence of bill of exceptions. This is with reference to argument of counsel for the state. We are unable to ascertain what the language was or the conditions that surrounded it. Another proposition is that the evidence is insufficient. It is not the purpose of this opinion to discuss that matter as the case will go again before a jury. Another proposition is the court erred in failing to charge on manslaughter. As this record is presented to us, we are of opinion that this phase of the law was not called for by the facts.

The remaining proposition is the court erred in not-submitting the law of murder in the second degree. This case was tried in the early part of this year and under the old law of murder. We are of opinion the judgment should be reversed for the failure of the court to submit that phase of the law. The evidence shows that on the evening of the homicide, an hour and a half or two hours prior thereto, there had been trouble between the defendant and deceased; they had separated. Just preceding the fatal encounter the defendant came to where French, Simms, Spikes, and Marshall were standing in front of a house. When defendant came up he asked deceased if he had his gun and was answered in the negative. Deceased asked the defendant if he had one and defendant told him no. Then appellant asked deceased if he was going to pay him for his mall or give him some satisfaction. Deceased replied that his mall was all right, and said, “That is just enough said to get a good man killed, you or me one.” Defendant said he need not get hot about it and shot. ■ The first shot missed; appellant snapped his pistol and fired again. The witnesses differ to some extent as to the real position of the parties at the time of the shooting. All the witnesses seem to indicate practically, if not in fact, that when the conversation began, and until after the first shot, the parties were facing each other, and at the time the second shot was fired deceased had partially turned; at least this is the state’s contention ; and when the second shot was fired it entered the body of deceased just above the hip and between the medium line down the side and the back, something like perhaps halfway between the backbone and the medium line drawn down the side. This shot proved fatal. Appellant’s contention, however, is 'to the contrary; that deceased was not leaving; and that he thought deceased was drawing a pistol. There is no question that the left hand of deceased was in his pocket at the time defendant approached. Some of the testimony goes to show that both hands of deceased were in his pocket at the time appellant reached the parties and before the conversation between deceased and appellant- began. To put it tersely, the state’s contention was that after the first shot deceased was trying to leave or was leaving, and appellant’s contention was that he was afraid deceased was going to hill him, and that was the reason he fired both shots. The witness Spikes testified with reference to the position of the hands of deceased as follows: “He was standing in this position (indicating) with his hands in his pockets. He had his hands in his pockets when Cal walked up and he stayed in the same position until the second shot was made, and he wheeled his side to him.” With reference to the conversation, appellant testified, “We were standing face to face, and he says, T will tell you one thing about that mall; you have done said enough about it to get killed;’ and when he said that I shot and shot again. I shot him because I thought he was going to shoot me. That is why I shot him.” There was some contention about the price of a mall; appellant thought the deceased ought to pay him for the mall; and deceased seemed rather averse to doing so; and this brought ui> the conversation an hour or two before the killing, and also at the time of the killing.

Under this state of facts, we are of opinion that a charge on murder in the second degree was demanded. The jury gave appellant a life sentence for murder in the first degree. The court charged murder in the first degree and self-defense. The thoroughly settled rule in this state, with reference to this question, may be thus stated: That, in order to justify the court in failing to charge on murder in the second degree, the evidence must be sufficiently cogent to exclude murder in the second degree; and, unless the evidence is so cogent, it is requisite that the charge on murder in the second.degree be given. The authorities are so numerous and so in harmony with each other we deem it unnecessary to refer to them, but many of the cases will be found collated in Blocker v. State, 27 Tex. App. 43, 10 S. W. 439. See, also, Benevides v. State, 14 Tex. App. 378.

For the failure of the court to charge on murder in the second degree, the judgment is reversed, and the cause is remanded.


text:
    FIGUEROA v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 8, 1913.)
    1. Indictment and Information (§ 137) — Surplusage — Motion to Quash.
    A criminal complaint or information is not subject to a motion to quash because of sur-plusage therein.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 480-487; Dec. Dig. § 137.]
    2. Criminal Law (§ 968) — Trial — Motion in Arrest of Judgment.
    The fact that the word “capable,” in a sentence in an indictment for selling liquor charging that-the liquor was capable of producing intoxication, was misspelled "capapble," was not ground for motion in arrest of judgment under Pen. Code 1911, arts. 476, 480, 849, 850, providing that such motion can only be granted for substantial defects; the word having been correctly spelled in the complaint, and the information providing that it was preferred in connection with the complaint.
    [Ed. Note. — For other cases, see Criminal-Law, Cent. Dig. §§ 2423-2432, 2435-2444; Dec. Dig. § 968.]
    3.Criminal Law (§ 881) — 1Trial—Verdict.
    Under Code Cr. Proc. 1911, art. 770, providing for a general verdict, a verdict, in a prosecution for selling liquor without a license, “We, the jury, find the defendant guilty as charged, and assess his fine at $300 and 30 days in jail,” was sufficient.
    [Ed. Note. — For other cases, see Criminal Law^Cent. Dig. §§ 2089, 2093; Dec. Dig. §.

    4. Intoxicating Liquors (§ 216) — Sale Without License — Complaint — Information-Alternative Allegation — “Malt Liquor’ ’ — ‘ ‘Beer.”
    A complaint for selling liquor without a license was not fatally defective because it alleged that defendant sold “malt liquor or beer” instead of charging a sale of malt liquor and beér, since the terms “malt liquor” and “beer,” as used in Pen. Code 1911, art. 612, prohibiting their sale without a license, are in effect synonymous.
    [Ed. Note. — For other cases, see Intoxicating liquors, Cent. Dig. §§ 230-233; Dec. Dig.

    For other definitions, see Words and Phrases, vol. 5, pp. 4314, 4315; vol. 1, pp. 731-734; vol. 8, p. 7588.]-
    5. Witnesses (§ 370) — Bias — Difficult* with Defendant.
    In a criminal prosecution, tne court properly permitted accused to show that a difficulty had occurred between him and one of the state’s witnesses, but refused to permit proof of the details thereof.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1189; Dec. Dig. § 370.]
    6.Criminal Law (§ 1037) — Trial—Misconduct of County Attorney.
    Improper remarks by a county attorney are not reviewable, in the absence of a request for Charges instructing the jury to disregard the remarks, especially where there are no bills showing the facts under which they were made.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1691, 2645; Dec. Dig. § 1037.]
    7. Criminal Law (§ 800) — Wrongful Sale —Definition of Terms.
    In a prosecution for selling malt liquor or beer without a license as a dealer, the court did not err in omitting to define the terms “occupation” or “business,” neither of which were used in the statute under which defendant was prosecuted.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1808-1810; Dec. Dig. § 800.]
    8. Criminal Law (§ 304) — Evidence—Judicial Knowledge — Intoxicating Liquors.
    The Court of Criminal Appeals will take judicial notice that beer is intoxicating.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 700-717, 295iy2; Dec. Dig. § 304.]
    9. Intoxicating Liquors (§ 224) — Wrongful Sale — License—Levy of Taxes.
    In a prosecution for selling malt liquor and beer without a license as a dealer in violation ■of Pen. Code 1911, art. 612, it was not necessary for the state to prove any county levy of taxes under such law.
    .[Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 275-281; Dec. Dig. § •224.]
    10. Intoxicating Liquors (§ 239) — Wrongful Sale — License as Dealer.
    In a prosecution for selling malt liquor or beer without a license as a dealer in violation of Pen. Code 1911, art. 612, it was proper for the ■court in stating the case to the jury to charge the substance of article 611, providing for retail liquor dealers’ licenses, since the obtaining ■of a license as a retail liquor dealer expressly includes the tax and license as a malt liquor •dealer.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 331-347; Dec. Dig. § •239.] .
    Appeal from Jim Wells County Court; W. R. Perkins, Judge.
    Alfredo Figueroa was convicted of selling malt liquor, and lie appeals.
    Affirmed.
    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

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

   PRENDERGAST, P. J.

Appellant was prosecuted and convicted under article 612, P. C., for selling malt liquor, beer, without ■a license as such dealer.

The complaint and information sufficiently charge the offense. No motion was made to quash them. There are unnecessary allegations therein, but such should not be regarded, and are surplusage. Thompson v. State, 152 S. W. 894; Goodwin v. State, 158 S. W. 274, and eases cited.

There was a motion to arrest the judgment, but the grounds thereof were for defects of form. Under the statutes such motions are granted only for substantial defects. P. C. arts. 849, 850, 476, 480. One ground is that in the information the word “capable” in this portion of a sentence “capable of producing intoxication” was misspelled, “capapble.” This word was qorreetly spelled in said sentence in the complaint, and by express averment the information alleges it is preferred “in connection with the affidavit (complaint).” In no event should the judgment have been arrested on said ground. Bailey v. State, 63 Tex. Cr. R. 584, 141 S. W. 224; Qualls v. State, 158 S. W. 539.

The verdict, “We, the jury, find the defendant guilty as charged, and assess his fine at $300 and* 30 days in jail,” is clearly sufficient. It is general as required by the statute (G. G. P. art. 770). There is but one count in the complaint and information. Even if there had been two or more, the general verdict could, and should, be applied to the good one sustained by the evidence. Wh. Ann. G. G. P. § 902, and cases cited.

That the complaint and information alleged appellant sold “malt liquor or beer” is not defective because “and” was not used instead of “or.” “Malt liquor” and “beer,” under the statute, are in effect synonymous. Johnson v. State, 66 S. W. 552; O’Neal v. State, 51 Tex. Cr. R. 100, 100 S. W. 919; Milling v. State, 150 S. W. 434; C. C. P. art. 473.

Appellant complains, by bill, in effect, that the court would not let him go into the details of a thorough whipping by appellant of one of the state’s witnesses, to show said witness’ malice, ill will, etc., against him. While it is always permissible to show such state of feeling of any witness (Pope v. State, 143 S. W. 611; Earle v. State, 142 S. W. 1181), yet the details and particulars cannot be shown. The court, in allowing the bill, stated he permitted the defendant to prove there had been a difficulty between them, but refused to let the details be shown.

Certain short remarks of the county attorney in argument were objected to. But the bills do not show the state of facts under which they were made. Nor were any charges asked instructing the jury to disregard them. Even in felony, much less in misdemeanor, cases, this would not present reversible error. Clayton v. State, 149 S. W. 119, and cases therein cited.

The court did not err in refusing appellant’s special charge defining “occupation” or “business,” as given therein. Neither of these words are used in the statute under which this prosecution was had. Even if it had been necessary to define either or both, the charge asked was incorrect, and not in accordance with the statute and decisions. Fitch v. State, 58 Tex. Cr. R. 366, 127 S. W. 1040; Clark v. State, 61 Tex. Cr. R. 602, 136 S. W. 260; Creech v. State, 158 S. W. 282, and cases cited.

This court knows judicially that beer is intoxicating. Moreno v. State, 143 S. W. 156. In addition, the pleadings alleged the beer, or malt liquor, appellant is shown to have sold and dealt in, was intoxicating, and the court, by the charge, required the jury to so believe before they could convict. The uncontradieted evidence shows several sales of beer to different persons about the time alleged; that at the time he made some of these sales he had bottled beer in a barrel with ice around them, and at other sales he had the bottled beer in a tub on ice; that he had this beer at his meat market when he made these sales; and that he had paid no tax as a retail malt liquor dealer, and had no license therefor. Mansfield v. State, 17 Tex. App. 468; Wade v. State, 22 Tex. App. 631, 3 S. W. 786; and see also the cases cited last above, and many other decisions to the same effect. Therefore the court did not err in refusing appellant’s special charges on these subjects, nor in the charges given; for, taking the charges given together, they correctly presented all the questions proper to be charged.

It was not necessary for the state to prove any county levy of taxes under this law (article 612, P. 0.).

In stating the case to the jury, the court, in the charge, gave in substance article 611, P. O. This was proper because the payment of the tax and getting a license as a retail liquor dealer expressly included the tax and license as a malt liquor dealer. Besides, in submitting the case for a finding, the court only submitted it under article 612, P. C. Reynolds v. State, 58 Tex. Cr. R. 275, 124 S. W. 931; Matthews v. State, 160 S. W. -, this day decided, and eases there cited.

There is no reversible error shown, and the ease will be affirmed.


text:
    Ex parte GOMEZ.
    (Court of Criminal Appeals of Texas.
    Oct. 14, 1913.)
    Appeal from District Court, Brooks County; W. B. Hopkins, Judge. Federico Gomez was indicted for murder, and brings habeas corpus sur bail. From an order denying' the writ, and remanding petitioner to jail, he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

By indictment the appellant was charged with murder, alleged to have been committed in May, 1913. On a ha-beas corpus hearing before the district judge in June last, the court heard the evidence and denied bail, from which appellant appealed. We have carefully considered all the evidence, and are of the opinion that the district judge was correct'in denying bail. The judgment is therefore affirmed.


text:
    HALLER v. STATE.
    (Court of Criminal Appeals of Texas.
    June 18, 1913.
    Rehearing Denied Oct. 15, 1913.)
    Appeal from Dallas County Court, at Law; W. E. Whitehurst, Judge. Cora Haller was convicted of an offense, and she appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of keeping a disorderly house; her punishment, being assessed at a fine of §200 and 20 days’ imprisonment in the county jail. The record is before us without a statement of facts or bills of exception. The indictment seems to be good on its face under the decisions. As the record presents the matter, there being no error, the judgment is affirmed.


text:
    YOUNG v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 15, 1913.)
    Appeal from District Court, Grayson County; W. J. Mathis, Special Judge. Bud Young was convicted, and appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted for unlawfully selling intoxicating liquors in Grayson county, where prohibition had been adopted since our felony statute on the subject was enacted, and his punishment fixed at two years’ confinement in the penitentiary. There is no statement of facts or bills of exceptions in the record, and no question is raised by the motion for new trial which can be considered in the absence of a statement of facts. The judgment is thei'efore affirmed.


text:
    THOMAS v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 15, 1913.)
    Homicide (§ 295) — Instbuctioi-ts—Applica-bility — Provoking Difficulty.
    In a prosecution for manslaughter, where the evidence showed that, in previous altercations between defendant and deceased, the deceased was the aggressor, and the defendant was seeking to avoid trouble, and there was some testimony that defendant went to the place where he thought deceased was, although without stating what his intentions were if he found deceased, hut the defendant testified that he did not know deceased was in that place, and went there for another purpose, whereupon deceased began the difficulty by attacking him with a knife, there was no evidence that the defendant provoked the difficulty which would warrant a court in instructing on that issue.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. §§ 606-609; Dec. Dig. § 295.]
    Appeal from District Court, Sabine County; A. E. Davis, Judge.
    Emanuel Thomas was convicted of manslaughter, and he appeals.
    Reversed and remanded.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was indicted, •charged with manslaughter, convicted of the offense, and his punishment assessed at two years’ imprisonment in the penitentiary.

Appellant contends that the court erred in submitting the issue of provoking the difficulty, and, if that issue was in the case, then the court erred in his charge on that issue in several respects. As we have concluded that the court erred in submitting that issue, we do not deem it necessary to discuss at length the other questions in the case. It appears from the record that appellant was the manager of Abe Smith’s dance hall in Pineland. A negro woman named Sallie was in the dance hall on the night preceding the fatal encounter. While Sallie was in the •dance hall, deceased attempted to go in the hall, making threats, and, when prevented from going in the hall, tried to borrow a gun. Deceased is shown to have made several ugly remarks, and claimed the negro woman Sallie as his woman. When the dance hall closed, Sallie went home with appellant, and went to bed with him. While they were in bed, deceased broke in the house, and struck appellant with a club. Appellant grabbed a pistol, and fixed at deceased, when deceased ran. It is shown that during the next day deceased made threatening remarks, and appellant reported the matter to the officers. The officers told the appellant to go to the dance hall and remain there until they had arrested deceased. The officers did not succeed in finding him, and made no arrest. The state’s testimony is that appellant said, “I believe Jim Wade is out at the closet; I am going out there,” not saying what he was going to do, or intended to do, if deceased was out there. Appellant denies making this remark, and says he went to the closet to answer a call of nature; that when he got to the closet deceased began the difficulty, and “made a lunge at him with a knife.” He apparently was the only eyewitness to the beginning of the difficulty. If the facts and circumstances in evidence would authorize the deduction that he went to the closet to raise a dufficulty with deceased, perhaps there would be no error in submitting the issue. But the record when read as a whole does not suggest that appellant was seeking a difficulty with deceased; but, on the contrary, all the threats were made by deceased. He was the person who seemed to be seeking the difficulty. It is shown that he had an open knife in his hand, a “springback” knife, 6½ inches in length. He had expressed an intention to have the woman Sallie, or do some killing. Under the evidence in this ease, we think the court erred in submitting the issue of provoking the difficulty, and imperfect self-defense, for under the evidence appellant was entitled to a charge on self-defense unabridged, and not limited by a charge on provoking the difficulty. If the court thought the evidence authorized this charge, then certainly the converse of the proposition should have been given. Appellant testified he did not know deceased was at the closet; that he went there to answer a call of nature, when he was assaulted by deceased with an open knife. These facts may not be true, yet he so testified, and, if the court was going to charge on provoking the difficulty, then in appropriate language the jury should have been instructed that, if they believed this state of facts to be true, of had a reasonable doubt thereof, appellant’s right to act in self-defense would be unabridged. However, we do not think the issue of provoking the difficulty was in the case, and on another trial, if the facts are the same, the court should not present that issue in his charge.

The cause is therefore reversed and remanded.


text:
    REDO v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 15, 1913.)
    Cbiminal Law (§ 1101*) — Appeai^-Ajttemance — No Ekrob Shown.
    In the absence of a statement of facts duly signed and approved and of a bill of exceptions, a judgment of conviction will be affirmed; the motion for new trial raising no question which can be considered without a statement of facts.
    [Ed.. Note. — For other cases, see Criminal Law, Cent. Dig. § 3204; Dec. Dig. § 1101.*]
    Appeal from District Court, Newton County; A. E. Davis, Judge.
    Ethel Thompkins Redo was convicted of burglary, and appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen.’ for the State.
   PRENDERGAST, P. J.

The appellant was convicted of burglary, and the lowest punishment fixed by law — two years in the penitentiary — was assessed.

There is no statement of facts signed by the attorneys for either side, or approved by the judge. There is no bill of exception. There is no question raised by the motion for new trial that can be considered in the absence of a statement of facts.

The judgment is therefore affirmed.


text:
    WINDHAM v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 15, 1913.)
    1. False Pretenses (§ 29) — Sufficiency of Accusation — Certaintt anb Definiteness.
    An indictment for obtaining notes by false pretenses, which fails to state whether the pretenses were with reference to a promise to deliver a deed to land or with reference to the land conveyed by the deed delivered, and which fails to show except in an inferential way that the deed delivered did not cover the land to be conveyed, is vague, indefinite, and uncertain.
    [Ed. Note. — For other cases, see False Pretenses, Cent. Dig. §§ 34-36; Dec. Dig. § 29.]
    2. False Pretenses (§ 7) — Elements oe Offense — Nature of Pretense — False Promises.
    A fraudulent representation that deceased would at some future time convey title to certain land in return for the present delivery of certain notes does not constitute the offense of swindling, since the statute expressly excludes mattérs of that sort; to constitute the offense the representations must relate to a past matter or existing fact and not a mere promise to do some act in the future.
    [Ed. Note. — For other cases, see False Pretenses, Cent. Dig. §§ 5-12, 25; Dec. Dig. § T.]
    Appeal from District Court, Newton, County ; A. E. Davis, Judge.
    T. J. Windham was convicted of swindling, and he appeals.
    Reversed, and prosecution ordered dismissed.
    J. M. Reagan, Forse & Wigley, and Cheat-ham & 'Stout, all of Newton, for appellant. C. E. Lane, Asst Atty. Gen., for the State.

      For otter cases see same topic and section NUMB35R in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   DAVIDSON, J.

Appellant was convicted of swindling. The indictment charges appellant with swindling Mrs. Youngblood; the allegation being in substance that she was the owner and in possession of four vendor lien notes each dated September 20, 1909, and payable respectively on the 1st day of October, 1910, 1911, 1912, and 1913, for the sum of $100, each drawing 10 per cent, interest annually. The notes were executed on the 20th day of September, 1909, by one S. V. Lott, and being given in part payment for 48 acres of land, a part of the Wm. Williams league in N.ewton county, and being the J. H. Booker farm containing the dwelling and improvements, and that theretofore, to wit, on or about 23d day of February, 1912, T. J. Windham in said county and state, for the purpose of acquiring and obtaining from Mrs. Youngblood said vendor’s lien notes, did fraudulently and willfully promise and agree to make and deliver to her (the said Mrs. Youngblood) a deed of conveyance to the 48 acres of land, a part of the Wm. Williams league in Newton county, being the land for which the said notes were given in part payment thereof, and by reason of such fraudulent representations and agreements induced Mrs. Youngblood to deliver to him the aforesaid vendor’s lien notes which were of the value of $100 each, and the said T. J. Win'd-ham did then and there and by means aforesaid acquire from Mrs. Youngblood said vendor’s lien notes, the same being the property of the said Mrs. Youngblood, with the intent then and there to'appropriate the same to the use of him (the said T. J. Windham), when in truth and in fact the sáid T. J. Wind-ham did not convey the said 48 acres of land to her (Mrs. Youngblood), but instead of so doing he (the said T. J. Windham) did fraudulently, willfully, and knowingly make and execute and deliver a deed of conveyance to Mrs. Youngblood, which is as follows: (It is unnecessary to set out the field notes in the deed executed by defendant, but after giving the field notes it recites that it contains 56 acres of land, more or less, with the usual clause.) The grand jury further said «that this above-mentioned deed was fraudulently, willfully, and knowingly, delivered to the said Mrs. Youngblood by appellant without fier consent and without her knowledge in that she (the said Mrs. Youngblood) relied upon the representations made to her that she was to receive a deed of conveyance to the 48 acres of land first mentioned herein, and that she (Mrs. Youngblood) believed at the time the notes were delivered that it was a deed to said 48 acres of land, and but for such false and fraudulent representations so made by appellant Mbs. Youngblood would not have given and delivered the notés to appellant, and that the deed so delivered to her by appellant was worthless, being of no value, and was delivered to Mrs. Youngblood with the intent to defraud her of the value of said notes, and that appellant then and there knew that said pretenses and representations so made by him to Mrs. Youngblood were false.

Many reasons are assigned why this indictment is vicious. It certainly is a very vague and indefinitely written document. Besides, in the last clause just above it does not show or allege what pretenses and representations made by appellant to Mrs. Youngblood were false, whether they were original pretenses or representations to obtain the notes, or whether pretenses and representations with reference to the deed he did deliver. It is also vague, indefinite, and uncertain in that it does not, except in a most inferential way, undertake to exclude the idea that the 48 acres about which the first conversation occurred were not included in the field notes for the 56 acres. That the pleader may have intended to convey the idea that the 48 and 56 acres were different tracts of land doubtless may be true, but the allegations do not, except in a most inferential way, so show.

But there is beyond all this a fatal defect that goes to the very gist of the whole matter. The representations as alleged were as to some future matter, not as tó some past occurrence or then existing matter. If he obtained the notes by fraudulent representations that he would convey a title to 48 acres of land, this was an occurrence to take place at some future time, not even specified in the representations or mentioned in the indictment. But the notes were transferred not as to a past matter or existing fact but on something to be done by the appellant at some time in the future. This would not constitute the offense of swindling and cannot be made under our statute to do so, for the statute expressly excludes matters of that sort as forming the basis of swindling. In addition to the statute, see Johnson v. State, 41 Tex. 65; Martin v. State, 36 Tex. Cr. R. 125, 35 S. W. 976; Allen v. State, 16 Tex. App. 151; Hurst v. State, 39 Tex. Cr. R. 196, 45 S. W. 573; Williams v. State, 31 S. W. 649; Fairy v. State, 50 Tex. Cr. R. 396, 97 S. W. 700.

In the Johnson Case, supra, the Supreme Court said: “ ‘Swindling is the acquisition of any personal or movable property, money, or instrument of writing, conveying or securing a valuable right, by means of some false or deceitful pretense or device, of fraudulent misrepresentation with intent to appropriate the same to the use of the party so acquiring, or of destroying or impairing the rights of the party justly entitled to the same.’ * * * We do not think the false and fraudulent representations set forth in the indictment such as come within the meaning of the statute. They do not relate to existing facts or past events and in this respect differ from the instances specified in the statute.”

It has always been held, as we understand, in this state that false promises or false professions of intention, although they may have been acted upon, are insufficient to constitute swindling.

In the case of Martin v. State, supra, the court said: “The representations here made, as it appears, were not to an existing fact but related to a future event and was in the nature of a representation or promise. * * * In our opinion, before a defendant can be convicted of the offense of swindling, there must be a distinct and certain representation of an existing fact, and the indictment must show such certain and distinct representation of the fact, either past or present.”

Applied to the case in hand, appellant was convicted by the only act or fact by which that conviction should have been predicated— the naked promise to do some act in the future, to wit, to make a deed to 48 acres of land.

In Allen v. State, supra, it was said: “Mere false promises or false professions of intention, although acted upon, are not sufficient to constitute swindling.”

In Hurst v. State, supra, the court said: “Allegations that the accused had induced prosecutor to sign a note by falsely representing to him that a certain collecting agency would pay a certain per cent, thereof is something to be done in the future.” See, also, Bishop, Crim. Law, vol. 2, pp. 419, 420.

Mr. Bishop uses this language: “In the next place, a promise is not a pretense. And if a man says that he will do an act, which he does not mean to do, as that he will pay for goods on delivery, his purpose being to defraud the seller of them, the ease is not within the statute.” Again, in section 420, the same author said: “And both in the nature of things and in adjudication the doctrine is that no representations of a future event, whether in the form of a promise or not, can be pretense, within the statute, for the pretense must relate either to the past or to the present.”

Authorities might be indefinitely enumerated, but these are sufficient.

There are several other questions of importance in the case, but under the view taken we do not purpose to discuss or decide them further than to say several of them are reversible in their nature, but under the allegations contained in the indictment the state has not alleged a case upon which a conviction can be predicated for swindling.

The judgment is reversed, and the prosecution is ordered dismissed.


text:
    CAGEL v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 15, 1913.)
    Ckiminad Law (§ 255) — Reception op Evidence — Evidence Receivable.
    Accused was charged with assault and battery, and T., the person claimed to have been assaulted, was also charged with the same offense committed, at the same time against accused. On accused’s trial T. was offered as a witness, but excluded upon a showing that he had been convicted of a felony and not pardoned, and after all of the evidence was introduced, accused requested the court to decide his case, a jury having been waived, which the court refused to do, stating that it would reserve its decision until the evidence was heard in the case against T., when T. would be permitted to testify for himself. T. testified in his own case, arid was acquitted, whereupon the court asked the jury if they considered accused guilty, and received an affirmative answer, when the court found a verdict against accused in his own case. Held, that the court’s action in deciding accused’s case on testimony introduced in T.’s case was erroneous, requiring a reversal.
    [Ed. Note. — Eor other cases, see. Criminal Law, Cent. Dig. §§ 539-541; Dec. Dig. § 255.]

      Appeal from Jefferson County Court; R. W. Wilson, Judge.
    Ed. C&gel was convicted of aggravated assault and battery, and appeals.
    Reversed and remanded.
    Blain & Howtb, of Beaumont, for appellant. O. E. Lane, Asst. Atty. Gen., for tbe State.

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

   PRENDERGAST, P. J.

Prom a conviction for an aggravated assault and battery on Gid Thomas, with a fine of $100 assessed, appellant appealed.

The allegations to make the offense an aggravated assault' and battery are, in effect: (1) That a serious bodily injury was inflicted ; (2) that a deadly weapon was used.

The state introduced but two witnesses, Harris and Gill, who testified; the appellant none. Appellant contends the evidence does not show an aggravated assault and battery, because it neither shows serious bodily injury, nor that a deadly weapon was used. It is unnecessary for us to pass on this question, in view of the fact that we must reverse the case on another ground.

By a proper bill appellant shows he was prosecuted for committing this offense on said Thomas. That in the same court, in the very next case said Thomas was prosecuted for the same offense against appellant, all growing out of the same transaction. That appellant waived a jury, and tried his case before the court. That in his trial the state offered said Thomas as a witness, but on objection of appellant, showing said Thomas had been convicted for a felony, served a term in the penitentiary, and had not been pardoned, the court could not permit him to testify. That after all the evidence in this case was introduced and the trial closed, appellant called on the court to decide his case. The court declined to do so, stating, among other things, he would reservé his decision until he heard the evidence in said next case against Thomas, at which time he would permit said Thomas to testify in his own behalf. That thereupon said case against Thomas was then tried before a jury, on which trial not only did said witnesses Harris and Gill testify, but several other witnesses also testified, as did said Thomas and appellant. That testimony is given in the bill, and is very material against appellant. That the jury acquitted Thomas. Thereupon the court asked the jury if they considered appellant guilty, and the jury replied affirmatively. That the court then found appellant guilty. It is clear that the court did not decide appellant’s case on the testimony introduced on his trial, but really on the evidence in the Thomas case, and the opinion of the jury in that case. This is against all law and reason. Persons accused of crime, however guilty, must be tried alone on the evidence introduced on the trial against them, and not on the evidence of the trial of another, or facts learned from some other source, For this error, this case will be reversed and remanded.

There is no other question raised, which will probably occur on another trial.

Reversed and remanded.


text:
    EASTER v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 15, 1913.)
    Disorderly Conduct (§ 1) — Abusive Language — Justification.
    Where accused, in response to P.’s accusation that he had not paid for feed furnished him by P.’s brother, replied, “If you say that I did not pay your brother for the feed, you are a liar,” he was guilty of using abusive language calculated to bring about a breach of the peace, since the use of abusive language towards accused does not justify him in using abusive language, although it may be considered in mitigation of the penalty.’
    [Ed. Note. — Eor other cases, see Disorderly Conduct, Cent. Dig. §§ 1-7, 9-13; Dec. Dig. § 1.]
    Appeal from Stonewall County Court; W. J. Arrington, Judge.
    Jim Easter was convicted of using abusive language, and he appeals.
    Affirmed.
    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 & Ren’r Indexes

   DAVIDSON, J.

Appellant was convicted of using abusive language calculated to bring about a breach of the peace.

The party to whom the language was used was Luther Pittcoek. The witness Shipman testified that some time in the fall Easter and himself were in a field in the eastern part of Stonewall county, and Pittcoek made his appearance; that they went from the field up near a house, when Pittcoek said to defendant, “I come down here after my money [the money defendant owed Pitt-eock].” Defendant said, “I haven’t got the money now, but as soon as I can get it I will pay you.” Pittcoek said, “I come down here to tell you how low down trifling you were; where is that bale of cotton?” Defendant said, “It is over at the gin, and when I get the money I will pay you.” Pittcoek said, “You will not do any such thing; you did not pay my brother for the feed he let you have.” Defendant said, “I did pay your brother for the feed.” Pittcoek said, “You didn’t do any such thing.” Defendant said, “If you say that I did not pay your brother for the feed, you are a liar.” Pittcoek said, “ ‘Take that back,’ and then picked up a board or piece of plank and stood and held it for some little bit, threw it down, and turned and walked toward his horse like he was going home, and after he had gotten some distance from where Jim Easter and I were standing he turned and walked back to where we were, picked up the board, or plank, and rushed on the defendant and struck him on the shoulder, breaking defendant’s shoulder -and collar bone. Defendant’s arm dropped to his side. Defendant run from Pittcock, but Pittcock pursued him and struck him (defendant) over the head with the board or plank.” On cross-examination this witness said that neither Pittcock nor defendant cursed any, and what he had stated was about all that was said by either of the parties. “Neither of them seemed to be mad until Pittcock rushed on defendant with the board or plank. They did not talk loud but in an ordinary tone of voice. All the defendant said to Luther Pittcock was, ‘If you say that I did not pay your brother for the feed he let me have, you are a liar.’ Pitt-cock is still living down there where he was last fall. He is not here as a witness in this case.” This is the state’s case.

The contention of appellant is that the language used (that is, “If you say that I did not pay your brother for the feed he let me have, you are a liar”) does not make out a case under our law of using abusive language, and he should have been acquitted. This matter is presented not only as to the sufficiency of the evidence but the refusal of the court to charge the jury to acquit under the particular state of facts, This case would seem to come within the rule laid down in Johnson v. State, 66 S. W. 1097, 1098. Under the rule laid down in that case it seems the judgment will have to be affirmed. Under the authority of Watkins v. State, 44 S. W. 507, and Christmas v. State, 44 S. W. 175, abusive language towards the defendant will not justify him in using abusive language, but such language could be considered in mitigation of the penalty in ease defendant should be found guilty.

So it would seem under these authorities this judgment should he affirmed, and it is accordingly so ordered.


author: DAYIDSON, J.

text:
    Ex parte RUSSELL.
    (Court of Criminal Appeals of Texas.
    Oct. 14, 1913.)
    1.Bail (§ 43) — Bailable Offenses — “Capital Offense” — “Evident.”
    Under Const, art. 1, § 11, providing that all prisoners shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident, parties charged with an offense that may be punished capitally are entitled to bail unless the evidence leads a well-guarded and dispassionate judgment to the conclusion that an ■offense has been committed, that the accused is the guilty agent, and that he will be punished capitally if the law is properly administered; a “capital offense” being one punishable by death, and “evident” meaning plain, clear, and obvious.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. §§ 153-164; Dec. Dig. § 43.

    For other definitions, see Words and Phrases, vol. 1, p. 958; vol. 3, pp. 2525, 2526.]
    2. Bail (§ 43) — Bailable Offenses — Capital Offense.
    Under the recent act of the Legislature abolishing the degrees of murder and providing that murder shall be punished by death or imprisonment for life or for any term of years not less than five, all murder cases are not made non-bailable or capital within Const, art. 1, § 11, providing that all prisoners shall be bailable by sufficient sureties unless for capital offenses when the proof is evident, and bail should be granted a person charged with murder unless the proof is evident that, if the law is properly administered, the conviction will be of a capital offense.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. §§ 153-164; Dec. Dig. § 43.]
    3. Bail (§ 43) — Bailable Offenses — Capital Offense.
    A penitentiary convict, while being taken on the_ train to a state farm, jumped through the car window and attempted to escape, whereupon the transfer agent, who was assisting in taking the prisoners to the farm in the performance of his duty, shot and killed such convict. No ill will between the agent and the convict appeared, and the killing apparently occurred only by reason of the escape. Held, that, under the rule that bail should be granted unless the proof is evident that, if the law is properly administered, the conviction will be of a capital offense, the agent, who was charged with murder, was entitled to bail, especially in view of Pen. Code 1911, art. 1094, § 10, providing that a person imprisoned in the penitentiary or attempting to escape therefrom may be killed by the officer having legal custody of him if his escape can in no other manner be prevented.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. §§ 153-164; Dec. Dig. § 43.]
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Application by Bud Russell for a writ of habeas corpus for the purpose of obtaining bail. From a judgment denying bail, he appeals.
    Reversed, and bail granted.
    Kahn, Williams & King, of Houston, 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

   DAYIDSON, J.

After reviewing the case, the court is of the opinion that relator is entitled to bail. Therefore the judgment is reversed, and the sheriff of Harris county is ordered to take bail in the sum of $5,000 conditioned as the law requires. Upon the execution of this bond the relator will be discharged from custody. There are some law questions involved in the case that are not here discussed. In an opinion to be filed later they will be taken up and reviewed, and that opinion filed with the record. '

The judgment is reversed, and bail granted in the sum of $5,000.

Additional Opinion.

Bail was granted relator in the sum of $5,000. The reasons for the decision were not stated at the time. We now proceed to state some of the legal reasons for the ruling of the court with reference to the recent change in our murder statute.

The Constitution, art. 1, § 11, reads as follows: “All prisoners shall be bailable by-sufficient sureties, unless for capital offenses when the proof is evident,” etc. The general proposition enunciated in the Bill of Rights, therefore, is that all prisoners shall be bailable with the exception stated, that unless for capital offenses when the proof is evident. In order to make the case nonbailable under this clause of our Constitution, the proof must be evident that there has been committed a capital offense. Construing this, it has been held that all parties are entitled to bail when charged with an offense that may be punished capitally, unless the evidence is strong and clear and would lead a well-guarded and dispassionate judgment to the conclusion that an offense has been committed, and that the accused is the guilty agent and would be punished capitally if the law is properly administered. Of course a capital offense is one which may be punished by death. There can be no capital offense unless the punishment is by death. The word “evident” means plain, clear, and obvious. Ex parte Boyett, 19 Tex. App. 45. The cases laying down the above proposition may be found collated in Mr. Branch’s Criminal Law, §§ 93, 96.

Prior to the recent act of the Legislature, murder was divided into two degrees. The first degree was predicated upon express malice, lying in wait, poisoning, etc. The second degree was constituted by the absence of express malice or those circumstances which constituted murder in the first degree on one side and such matters as would reduce the homicide by reason of extenuating circumstances or mitigation to manslaughter or negligent homicide or excused or justified the act of killing. The punishment for murder in the first degree under the old law was death or life imprisonment in the penitentiary ; for murder in the second degree any term of years in the penitentiary not less than five. The new or amended statute abolishes the two degrees of murder and provides the punishment for murder shall be death, life imprisonment, or any term of years in the penitentiary not less than five. This definition of murder with its prescribed punishment does not and cannot affect the constitutional rule authorizing bail in all cases except capital offenses where the proof is evident. The same punishment is prescribed in cases of rape or robbery by firearms. But in ail such cases the proof, in order to deny bail, must be evident that the offense is capital. It does not follow that, because the definition and punishment for murder has been changed, therefore all murder cases are nonbailable. This is borne out by the very terms of the statute itself, because such punishment is graduated from five years in the penitentiary to the death penalty. If the Legislature had intended to make all murder nonbailable or capital, they would have used appropriate language and fixed the punishment of death, but such is not the statute. The rule laid down by the Legislature would show and indicate that it was not the purpose of it to cause a conflict between the act of the Legislature and the provisions of the Bill of Rights. The Legislature intended, as did the makers of the Constitution, to deny bail only when the proof is evident of a capital offense, or that the party would be punished with death under the rules prescribed and well known to our jurisprudence. The circumstances attending each killing must be the guiding rule as to whether the offense is capital or not and of course whether bailable or not.

It is not the purpose of this opinion to go into a long treatise or discussion of these matters but simply to reiterate the law, as it has been declared not only by the Constitution but understood thoroughly in the jurisprudence of the state, that in order to refuse bail the proof must be evident of a capital offense; that is, if the law is properly administered, the conviction would be of a capital offense. There has been a great number of cases of murder that are not capital. While the Legislature abolished the distinction between the two degrees of murder, it was not the purpose of that act, as evidenced by its terms, to make all cases non-bailable. There was simply a general definition given of murder, prescribing the punishment from minimum to maximum, as in the case of robbery by firearms or rape.' That robbery and rape eases are nonbailable simply by reason of the fact the parties may be punished capitally would depend upon the circumstances attending the case as to the proper conclusion of the enormity of guilt.

Applying the rules to the case in hand, stating just enough of the facts to show the environments of the case, the record discloses that appellant was the transfer agent of penitentiary convicts. That in obedience to his duty he was assisting two other officers in carrying a lot of prisoners from Huntsville through Houston to what is known as the Sugar Land or Imperial State Farm. While at Houston the prisoners were transferred from one train to another and were securely locked in pairs. The deceased, one of the prisoners, managed in some way to unlock the chain around his neck and, jumping through the car window, sought to escape. After the deceased escaped from the car he was shot and killed by relator. It is unnecessary to go into a detail of the circumstances further than stated. They will become matters for investigation, should relator be tried before a jury. Our statute provides (article 1094, § 10) that “a person under sentence of death or imprisonment in the penitentiary, or attempting to escape from the penitentiary, may be killed by the officer having legal custody of him if his escape can in no other manner be prevented.” The deceased was a penitentiary convict and attempting to escape and was killed by the relator who had him in legal custody. Now, relator would be justified or excused under the statute unless deceased’s escape could in some other manner be prevented. From the evidence there was no ill will shown between relator and the deceased, and, as we gather from the facts, the killing occurred only by reason of the escape. This much of the evidence has been stated in order to justify the conclusion of this court that the case is bailable under the rules of law as applied to this record. The trial court was therefore not justified in refusing bail.