author: PRENDERGAST, P. J.

text:
    JOHNSON v. STATE.
    (No. 3566.)
    (Court of Criminal Appeals of Texas.
    May 26, 1915.)
    1. Indictment and Information <&wkey;125 — Duplicity.
    An indictment charging in one count that the defendant “did ■■■ * * unlawfully and knowingly become the agent of E. for * * , * obtaining the receipt for said E. for poll tax, 4 * * and as said agent * * * did unlawfully pay * * * the poll tax, * * * and thereby obtain the receipt for said poll tax,” was duplicitous in ■ that it charged a violation of Pen. Code 1911, art. 229, making it a misdemeanor to become another’s agent to obtain a poll tax receipt or to give another money to induce him to pay his poll tax, and also a violation of article 233, making it a felony to pay or procure another to pay the poll tax of a citizen.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 334-400; Dec. Dig. <&wkey;>125.]
    2. Indictment and Information <&wkey;lll — Payment . of Poll Tax — Negativing Exceptions of Statute.
    Neither an indictment, charging a violation of Pen. Code 1911, art. 229, making it a misdemeanor to knowingly become another’s agent to obtain a poll tax receipt, “except as provided by this act,” nor an indictment charging a violation of article 233, making it a felony to pay or procure another to pay the poll tas of a citizen, “except as is permitted by law,” need negative the exceptions.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 295-298; Dec. Dig. &wkey;lU.]
    3. Ceiminai. Law <&wkey;101 — Jurisdiction — Payment of Poll Tax — Indictment — Transfer to County Court.
    Where an indictment filed in the district court charged a felony committed in violation of Pen. Code 1911, ,art. 233, relating to payment of poll taxes, it was improper to transfer it to the county court, though it also charged a misdemeanor committed in violation of article 229.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 199-205; Dec. Dig. 101.)
    Appeal from Palo Pinto County Court; J. T. Ranspot, Judge.
    Ira Johnson was convicted of violating the law relating to payment of poll taxes, and appeals.
    Reversed, with directions.
    Moyers & Creighton, of Mineral Wells, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was tried and convicted in the county court for a demeanor. The main question is as to the sufficiency of the indictment, so far as a conviction in the county court is concerned.

After the necessary preliminary and closing allegations, which are regular, the indictment avers:

That on January 30, 1914, in said county, appellant “did then and there unlawfully and knowingly become the agent of D. E. Ethridge for the purpose of obtaining the receipt for the said D. E. Ethridge for poll tax for the state of Texas and county of Palo Pinto, due by the said D. E. Ethridge to the said state and county for the year A. D. 1913, and as said agent the said Ira Johnson did unlawfully pay the tax collector of Palo Pinto county, state of Texas, the poll tax due by the said D. B. Ethridge to the state and county aforesaid for the year A. D. 1913, and did then and there and thereby obtain the receipt for said poll tax for the said D. E. Ethridge.”

Appellant claims, and properly raised the question, that this indictment was duplicitous in that in the same count it charged both a misdemeanor and a felony.

Article 229, P. C., is:

“Any person who knowingly becomes agent to obtain a poll tax receipt or certificate of exemption, except as provided by this act, or any one who gives money to another to induce him to pay Ms poll tax, is guilty of a misdemeanor.”

Article 233, P. C., is:

“Any candidate for office or other person who pays or procures another to pay the poll tax of a citizen, except as is permitted by law, is guilty of a felony, and shall be punished by confinement in the penitentiary not less than two nor more than five years.”

It will be clearly seen from these two articles that they make two separate and distinct offenses, one a misdemeanor, the other a felony. The indictment, we think, clearly embraces both, and is unquestionably duplicitous which is bad pleading. Section 383, White’s Ann. C. G. P., and cases therein cited. Clearly article 229 makes it a misdemeanor for any person to knowingly become the agent of another to obtain for him a poll tax receipt or certificate of exemption. If the allegations of the indictment herein liad stopped when it alleged that appellant “did then and there unlawfully and knowingly become the agent of D. E. Ethridge for the purpose of obtaining the receipt for the said D. E. Ethridge for poll tax for the state of Texas and county of Palo Pinto, due by the said D. E. Ethridge to the said state and county for the year A. D. 1913,” and then, of course, concluded, as it did, “against the peace and dignity of the state,” the indictment would have charged a misdemeanor. It was not necessary, in alleging a misdemeanor, to further charge that, as said agent, he paid the tax to the tax collector, and then and thereby obtained a receipt therefor. In making the proof on trial such proof would be proper in order to make out the offense charged as a misdemeanor.

So if the indictment had charged that said appellant “did then and there unlawfully and knowingly pay the tax collector of said county the poll tax due by the said Ethridge to the state and County for the year 1913,” etc., the indictment would have charged a felony, and the additional allegation that he did then and thereby obtain the receipt for said poll tax would not have vitiated the indictment for a felony. And likewise, whether this latter allegation was made or not, proof would have been admissible on the trial that he did obtain the receipt in order to help make out the proof that he unlawfully paid the tax collector the poll tax of Ethridge.

In an indictment for either the misdemeanor or felony, it was not necessary for it to negative the exceptions in either of said articles further or other than it was done by stating that he did then and there unlawfully and knowingly, etc. The exceptions in other articles of the law were matters of defense, and the indictment did not have to negative them. Mizell v. State, 59 Tex. Cr. R. 226, 128 S. W. 125; Murphy v. State, 59 Tex. Cr. R. 479, 129 S. W. 138; Sutphen v. State, 59 Tex. Cr. R. 500, 129 S. W. 144; Payne v. State, 60 Tex. Cr. R. 322, 131 S. W. 1101; Slack v. State, 61 Tex. Cr. R. 372, 136 S. W. 1073, Ann. Cas. 1913B, 112, and authorities cited in the opinions in these cases.

It occurs to us that in any event, if prosecution is continued, another indictment should be drawn, so as to charge either a misdemeanor or felony without being incumbered with the allegations of the other offense. Clearly a party could be prosecuted for both offenses — one for unlawfully and knowingly becoming the agent of another, to obtain a poll tax receipt or certificate for him, a misdemeanor, and also for paying the poll tax of another, whether he did so as agent or not, a felony.

Under tlie circumstances, this case was improperly transferred from the district court to the county court. The case will be reversed, with instructions to the county court to transfer the case back to the district court for disposition in the district court in accordance with this opinion.

Reversed, with instructions.
      &wkey;>For other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes

      @=»For other oases see same topic and KBY-NXJMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

license: Public Domain

text:
    ROAN v. STATE.
    (No. 3584.)
    (Court of Criminal Appeals of Texas.
    June 2, 1915.)
    Cbiminal Law <&wkey;1097 — Appea:i>-Pbesentation non Review — Sueeicienoy oe Evidence— Statement oe Facts.
    The sufficiency of the evidence to sustain a verdict of guilty cannot be considered on appeal, in the absence of a statement of facts.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2862, 2864, 2926, 2934, 2938, 2939, 2941, 2942, 2947; Dec. Dig. &wkey;1097J
    Appeal from District Court, Tarrant County; Marvin H. Brown, Judge.
    Ed Roan was convicted of burglary, and appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty G.en., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of burglary.

There is neither a statement of facts nor bill of exceptions in the record. The only ground of the motion for new trial is that the evidence is insufficient to sustain the verdict. Of course, this cannot be considered, in the absence of a statement of facts.

There being nothing we can review, the judgment is affirmed.


author: DAVIDSON, J.

text:
    LUSTRESS v. STATE.
    (No. 3577.)
    (Court of Criminal Appeals of Texas.
    June 2, 1915.)
    1. Cbiminal Law &wkey;>1090 — Appeai>-Statement oe Facts.
    On a record without a statement of facts or bill of exceptions, nothing is presented which the Court of Criminal Appeals can review.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. &wkey;1090.]
    2. Cbiminal Law &wkey;>1184 — Punishment — Indeterminate Sentence.
    Sentence for an indeterminate period of from 2 to 45 years on a conviction for 45 years for pandering would be reformed, by entering a sentence in accordance with the Indeterminate Sentence Law (Acts 33d Leg. c. 132), providing a punishment of not less than 5 years.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3199, 3200; Dec. Dig. <&wkey;> 1184.]
    Appeal from District Court, Tarrant County; R. B. Young, Judge.
    R. B. Lustress was convicted of pandering, and he appeals.
    Modified and affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted under a charge of pandering, and given 45 years in the penitentiary.

The record is before us without a statement of facts or bill of exceptions. In tbis condition of the record, there is nothing presented we can review or discuss.

The Assistant Attorney General calls our attention to the fact that the judgment should be reformed, so as to comply with the Indeterminate Sentence Law. That law provides the punishment shall not be less than 5 years. Here the conviction was for 45 years. The sentence was pronounced for an indeterminate period of from 2 to 45 years. The court will correctly enter up the judgment, and reform the sentence to comply with the statute, fixing the punishment for pandering in accordance with the Indeterminate Sentence Law.

The judgment, therefore, will be reformed to this extent, and affirmed.


text:
    MILLS v. STATE.
    (No. 3581.)
    (Court of Criminal Appeals of Texas.
    June 2, 1915.)
    Infants !&wkey;16 — Delinquent Childben — Statutes — Remedy.
    The statute for proceeding against infants as delinquent children does not create a criminal offense, so that a judgment on a trial under it is not appealable, but any remedy is by habeas corpus.
    [Ed. Note. — For other cases, see Infants, Cent Dig. § 16; Dec. Dig. &wkey;16J
    Appeal from Dallas County Court; Quentin D. Corley, Juvenile Judge.
    Odell Mills was proceeded against as a delinquent child, and appeals from the judgment.
    Dismissed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was charged with being a delinquent child. The only question in the case, the evidence not being before us, is certified in a bill of exceptions by the judge; that is, that Odell Mills is a married woman, though under 18 years of age. The contention is that a married woman cannot be the subject of punishment or correction under the juvenile act.

The question presented by the record, in view of the recent decision by the majority of this court in Ex parte Bartee, 174 S. W. 1051, cannot be considered. It was there held that this statute did not create a criminal offense, and therefore a conviction or á trial, and ■ judgment under it, was not the subject of appeal. It was further held that, if the judgment was of such a nature as ought not to have been rendered, the only remedy was by writ of habeas corpus. Under that holding we dismiss the appeal for want of jurisdiction in this court. This relegates the party to her remedy under habeas corpus. Tile writer desires to say that a woman upon her marriage becomes of legal age and ceases to be a juvenile under the act of the Legislature for the correction of children.

Under the decision in the Bartee Case, the appeal herein must be dismissed; and it is accordingly so ordered.
      <i£=s>For other cases see same topic and KEY-NXJMBBR in all Key-Numbered Digests and Indexes


text:
    JONES v. STATE.
    (No. 3574.)
    (Court of Criminal Appeals of Texas.
    June 2, 1915.)
    1. Ceiminal Law >&wkey;1099 — Appeal—Statement oe Pacts.
    A writing contained in the record in a criminal case, but signed by no one, cannot be considered as a statement of facts.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dee. Dig. <S=> 1099.]
    2. Criminal Law i&wkey;1097 — Appeal — Presentation eor Review — Statement oe Pacts.
    In the absence of a statement of facts on appeal in a criminal case, a bill of exceptions, complaining of the overruling of an application for a second continuance, cannot be reviewed.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2862, 2864, 2926, 2934, 2938, 2939, 2941, 2942, 2947; Dec. Dig. &wkey;1097.]
    Appeal from District Court, Gonzales County; M. Kennon, Judge.
    Ivey Jones was convicted of murder, and appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of murder, and his punishment assessed at 25 years’ confinement in the penitentiary.

There is no statement of facts with the record. What may have been intended as the basis for a statement of facts is found with the record. It is signed by no one, not even a stenographer, by the attorneys for neither side, nor by the presiding judge. Hence it cannot be considered as a statement of facts.

There are only two bills of exceptions in the record. One is to the court’s overruling of the application for a second continuance. This cannot be reviewed, in the absence of a statement of facts. The other bill is to the court’s refusing to sustain his challenge of a certain juror. This, even if we could consider it in the absence of a statement of facts, shows no error in the court’s ruling.

The judgment is therefore affirmed.


author: HARPER, J.

text:
    HAMMONS v. STATE.
    (No. 3548.)
    (Court of Criminal Appeals of Texas.
    June 2, 1915.)
    1. Homicide <&wkey;190— Evidence — Threats against Codeeendant.
    Evidence of threats of the deceased that he would kill one jointly charged with the defendant with killing deceased was not admissible on the trial of defendant alone; it not being shown that he had knowledge of such threats.
    [Ed. Note. — Por other eases, see Homicide, Cent. Dig. §§ 399-413; Dec. Dig. <&wkey;190.]
    2. Homicide <&wkey;300 — Instructions — Sele-Deeense.
    Pursuit of deceased with intent to kill him was an overt act, depriving defendant of the right of self-defense and justifying refusal of an instruction that, though defendant pursued deceased with intent to kill him, yet if when he overtook deceased he drew a pistol and fired, defendant would be justified in killing him.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. <&wkey;>300.]
    3. I-Iomicide &wkey;>309 — Instructions — Manslaughter.
    Where defendant pursued deceased until he overtook him, when deceased; not saying anything, fired at defendant, and in the shooting deceased was killed, it was a case, either of murder or a homicide, justified by self-defense, and it was proper to refuse to instruct on manslaughter.
    [Ed. Note. — Por other cases, see Plomieide, Cent. Dig. §§ 649, 650, 652-655; Dec. Dig. &wkey;> 309.]
    4. Homicide <&wkey;190 — Evidence—Threats— Character oe Deceased.
    Where evidence was admitted that deceased had said he was going to kill defendant, which threats were communicated to defendant, it was error to refuse to permit evidence that deceased at the same time said it would not be the first man he had killed, as he had killed one in Oklahoma.
    [Ed.' Note. — Por other cases, see Homicide, Cent. Dig. §§ 399-413; Dec. Dig. &wkey;190.]
    5. Homicide &wkey;>169 — Evidence—Avoidance oe Dieeiculty — Conduct oe Deceased.
    Where there was evidence that on a day preceding that of the killing defendant was going from store to store with part of a buggy shaft about two feet long looking for deceased, it was error to admit evidence that deceased sought advice as to what he should do, and followed it by going to his home, where it was not shown that defendant knew that deceased was trying to evade him.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. §§ 341-350; Dec. Dig. &wkey;169J
    6. Homicide <&wkey;300 — Self-Deeense — Instructions.
    Where self-defense was involved, the court erred in failing to instruct that if deceased was armed with a pistol and shot at defendant, the law presumed deceased intended to kill him.
    [Ed. Note. — Por other cases, see Homicide, Cent.-Dig. §§ 614, 616-620; 622-630; Dec. Dig. <&wkey;>300.]
    7. Homicide <&wkey;300 — Sele-Deeense—Rela-tive Strength oe Parties.
    Where the killing occurred in a shooting which defendant claimed was begun by deceased, it was error to instruct the jury that they could take into consideration the relative strength of the parties.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. <S^300.]
    8. Homicide <&wkey;>30O — Instructions — Undue Emphasis — Self-Deeense.
    Where an instruction had been given, properly limiting defendant’s right of self-defense, the repetition of such limitation in another instruction was placing an undue emphasis on that phase of the law.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. <@=>300.]

      Appeal from District Court, Bowie County; H. E. O’Neal, Judge.
    Mack Hammons was convicted of murder, and appeals.
    Reversed..
    J. Q. Mahaffey and Joe Hughes, both of Texarkana, for appellant. C. C. McDonald, Asst. Atty. Gen'., for the State.
   HARPER, J.

Appellant was convicted of murder, and his punishment assessed' at 15 years’ confinement in the penitentiary.

The evidence would show that there was a dance at the residence of deceased some three weeks or a month before appellant killed Pearl Stroud. Appellant played the violin at this dance. A difficulty arose between appellant and his brother, Zack Hammons. Deceased attempted to interfere in this difficulty, and appellant and Stroud had a difficulty.' Witnesses for defendant say that next morning, when Joe Plokes went to deceased’s home after his watch, deceased cursed Joe Hokes, and used very approbrious language towards appellant, saying he was going to whip appellant when he met him, one saying that deceased said he was going to kill appellant on sight. The evidence makes it clear that appellant was told about this matter, and he later saw deceased; deceased denied making any such remarks, and he and appellant apparently, according to the record, became friendly. Several witnesses for appellant say they saw deceased subsequent to this time, and he told them, while he denied making the remarks attributed to him, and made friends, he did so to get an opportunity to kill appellant, and they so informed appellant. Two witnesses also testify that they had heard that deceased on one occasion had sought to waylay appellant and kill him, and had so informed appellant. Defendant sought also to introduce threats that deceased is alleged to have made that he would also kill Joe Hokes, contending that, as appellant and Hokes were jointly charged with the offense of killing deceased, this testimony would also be admissible. Appellant alone was on trial, and we do not think the threats, if any made, to do Hokes bodily harm were admissible. It is not shown that he had knowledge of such threats, and they could, in no way, have influenced his action. The only threats in the record, after appellant admits he saw deceased, and he had denied making any such threats as the witnesses say they communicated to appellant, is the threat that deceased had said “he made friends with appellant to get the drop on him and kill him,” and evidence of Ed Autrey and Grover White that they told appellant that they had heard that deceased was waylaying the road for him. Will Autrey also testified he told appellant that Stroud, deceased, was hunting for him with a gun. They also say these matters were communicated to appellant pri- or to the day of the fatal difficulty.

On Sunday, the 5th day of April, it appears that appellant, Joe Hokes, J. T. Markham, Grover White, Monroe Hicks, and Dump Hicks had all gathered at the home of George Hicks. While they were there, some engaged in playing checkers, and others engaged in “pitching dollars,” deceased rode up, called Mr. Dump Hicks to one side, and borrowed a plow from him to break some land. As he started off, appellant and Joe Hokes started towards deceased and told him to hold on a minute, they wanted to see him. Deceased got on his horse and started off, when appellant called to him, either, “Run, you coward,” or “Run, you cowardly son of a bitch.” Deceased proceeded on his way, his horse traveling in a lope. As he started off, appellant remarked if he had a horse he would overtake deceased. Joe Hokes remarked he had a horse at Grover White’s, a short distance away, and he would go and get it. 1-Ie did so, and as he drove back, appellant got in the buggy with him. At this time some of those present suggested that they do not, go after deceased; that he would be at Dump Hicks’ the next day after the plow he had borrowed, and they could see him then. Joe Hokes said he had to plant corn the next day, and appellant and Hokes put their horse in a run going after deceased. They overtook him near the home of Jim Stinson, when the fatal shooting took place. Deceased was riding a two year old pony, and never stopped running the pony until after he was shot and he had arrived at the home of Doc Autrey. The testimony of appellant would show that, when they had pursued the deceased for about a mile, they overtook him, and when they did do so, deceased turned in his saddle and shot at them, when both appellant and Joe Hokes returned the shot. Some of the testimony would indicate that when appellant and Hokes overtook deceased, they stopped the buggy and shot at deceased, when he returned the shot. Their contention is that, when they caught up with him, they called to him to “Hold on, we want to have a friendly talk with you,” when deceased drew his pistol and fired. They then stopped their buggy and began shooting at deceased as he continued to flee, emptying their pistols.

Appellant requested the court to instruct the jury that even though he and Joe Hokes pursued the deceased with the intention to kill him, yet if when they overtook deceased he drew a pisiol and fired, appellant would be justifiable in killing him. We do not think this is the law under the facts in this case. It is true that, even if one goes to where another person is with the intention of killing him, yet if he commits no overt act to bring on the difficulty, he would not be deprived of his right to defend himself from an assault then made on him. But the evidence in this case presents no such state of case. When he fled from them from the home of George Hicks, and they got a horse and buggy and pursued him at a rate of speed to cause those who saw them coming to say, “Look, Joe Hokes’ horse is running away,” it was such an overt act in and of itself that if they pursued him with the intent to kill him or do the deceased serious bodily injury as to deprive themselves of the right of self-defense.

Neither do we think the court erred under the evidence now before us in refusing to submit the issue of manslaughter. They by their course in pursuing deceased brought about the occasion of the difficulty. Nothing was said at the time of the difficulty by deceased ; he continued to flee even' though he may have shot first. If they pursued him with no intention to bring on a difficulty that might result in death, self-defense might be in the case, but not manslaughter. And if they pursued him with the intention to kill or do him serious bodily injury, neither manslaughter nor self-defense would be in the case. That manslaughter is not in the case is evidenced by the testimony of appellant. He admits that after he emptied his pistol, and deceased had fled from their sight, he got out of his buggy and got the hat of deceased, which he had lost in his flight; that, they drove back up the road, and met Mr. Markham and others, who had followed on after them, and was asked, “Did you get him?” Appellant responded, “No; we got his hat,” and then testifies:

“Yes; we held up our six-shooters, and Hokes said, T emptied mine/ and I said T emptied mine,’ and I said, Tf I didn’t get him, my gun is wrong.’ I think I said those very words.”

This indicates anything else but a state of mind which would reduce an offense to manslaughter.

The court submitted the issue of self-defense, and if self-defense is raised by the testimony, there are several matters complained of that will necessitate a reversal of the ease. In the first place, appellant proved by Josh Hicks that he had heard deceased say he was going to kill appellant on first sight, and that in the same conversation deceased told him (Hicks) that he (deceased) had killed one man in Oklahoma, and that he communicated this conversation to appellant. The court permitted the witness to testify what deceased had said about killing appellant, hut refused to permit him to testify what deceased had said about killing a man in Oklahoma. In this the court erred. The fact that deceased in a conversation had said he was going to kill appellant, and at the same time said it would not be the first man he killed, as he had killed one in Oklahoma, would have much to do with appellant in judging the weight to give such threat, and in judging the character of man with whom he had trouble.

Again, the court permitted Rev. M. G. Nelson and H. S. Irby to testify that on the day preceding the homicide they saw appellant in the town of Maud; that he had part of a buggy shaft about two feet long; that he went to first one store and then another, and looked in as if looking for some one; that deceased was in town at that time. Under the facts and circumstances in this case, this much of the testimony was admissible, as the jury would be authorized to find that deceased was the person he was looking for, and had then determined to kill him or do him some serious bodily injury if he could find him, but, failing to find him on that day, the next day, when he saw him, he pursued him and killed him. However, Mr. Irby was also permitted to testify:

“I ’remember seeing Stroud in the store — he was trading there at the time — and I went on back up there to my place of business, and Stroud was in there when I went back, and I called him in the back of the store and asked him what was the matter with him and Ham-mons (interrupted by an objection and ruling), lie told me that he and Hammons had had a fight at Stroud’s house sometime back, at a dance, and I told him (interrupted by an objection and ruling). Stroud told me he didn’t want to have no trouble, and asked me what to do, and I told him if I was in his place I would go on home, and he had his wife and another lady with him — I don’t remember who she was, whether his wife’s sister, or his sister— and he was in a wagon, and I advised him to go out there and get in the wagon between the young lady and his wife and drive on home, and he did just what I told him.”

Mr. Nelson was permitted to testify, in substance, to the same thing. In approving the bills the court states:

“I permitted this testimony because it tended to show that deceased was trying to avoid a difficulty with defendant, or to evade a meeting with defendant.”

If appellant had been shown to be aware of these facts, then the testimony -would have been admissible, but there is nothing in the record to show that fact. There is nothing to show that appellant was aware of the fact that deceased was trying to evade him and avoid a difficulty with him, other than that he rode off when he accosted him the next day. On the other hand, if the testimony of his witnesses is to be believed, deceased had said he was going to kill appellant on sight, and had, in fact, waylaid the road to accomplish that purpose.

Again, if self-defense is in the case, the complaint of appellant that the court erred in failing to instruct the jury that if deceased was armed with a pistol and shot at appellant, the law presumed the deceased intended to kill appellant presents error. Clark v. State, 56 Tex. Cr. R. 294, 120 S. W. 179; Scott v. State, 46 Tex. Cr. R. 313, 81 S. W. 950.

Also the criticism that the court should not have instructed the jury that they could take into consideration the “relative strength of the parties” is well founded. The evidence shows that deceased weighed only from 115 to 120 pounds, while appellant would weigh 170 pounds. When one man is shooting at another with a pistol, the fact that the man who is shooting at you is the smaller man of the two can make but little difference, and the jury might have been misled.

Neither should the court have given both paragraphs 7 and 9 of the charge, both of them limiting appellant’s right of self-defense. This was unduly emphasizing that phase of the case. Paragraph 7 sufficiently presented that phase of the law, and the criticisms thereof are without merit, but paragraph 9 should not have been given.

The other matters complained of in the record we do not deem it necessary to discuss. We have said what we have on the theory that the evidence raised the issue of self-defense. The trial court apparently thought so, and submitted that issue to the jury. Prom reading the record we have very grave doubts that it does do so. Even though deceased had said he was going to kill appellant on sight, he did not attempt to do so when he saw appellant. On the other hand, when he got through with his business he started away, appellant called to him, and he made his horse lope off, appellant calling to him, to say the least, “Run, you coward.” Appellant then secures a conveyance and takes after him for the purpose of overtaking him, as he says, to see him about the remarks he heard deceased had been making, also testifying, “Yes; I realized I might have trouble if I caught him.” And in answer to the question, “You were not seeking him for a friendly conversation then” appellant replied:

“He could have said, T am sorry for it’; if he had said something like that, there would have been no trouble.”

This does not, to our minds, convey the impression that appellant was running down deceased with a view to an amicable settlement of their troubles, but rather he pursued him with no such intention or expectation. However, the trial court seemed to think that the fact that appellant, on direct examination, testified he sought to overtake deceased to settle their troubles peaceably, and further, testified that when he overtook deceased he said, “Hold on, we want to have a friendly talk with you, and see if we can get this trouble stopped,” deceased then pulled his pistol, when appellant says he called to him: Don’t start anything like that; all we want is a peaceable settlement” — presented the issue that his pursuit of deceased may have been only to affect an adjustment of their difficulties, with no intention to harm deceased, and therefore raised the issue of self-defense. Of course, if this is the correct view of the testimony, the trial court was correct in thinking that the issue was in the case. He saw the witnesses and heard them all testify, and is more capable of judging this matter than we are from the mere typewritten sheet of the testimony. And taking this view of the testimony, we have pointed out the above errors in the record on the theory that self-defense is raised by the testimony. Had the trial court held there was no self-defense under the testimony, when we take all of appellant’s testimony, we would sustain his ruling, for as held by this court in Thumm v. State, 24 Tex. App. 700, 7 S. W. 236:

“It is an elementary principle of the law that self-defense is a defensive, not an offensive act.”

Judge Willson further says in that opinion:

“But, again, to one who brings on an affray or who prepares himself for an encounter in which he intends to wreak his malice, the plea of self-defense is not available, though his own life be imperiled in the affray. If a person by his own wrongful act brings about the necessity of taking the life of another, to prevent being himself killed, he cannot say that such killing was in his necessary self-defense. A person cannot avail himself of a necessity which he had knowingly and willfully brought upon himself. Willson’s Texas Crim. Laws, § 981. If a person voluntarily engage in a combat, knowing that it will or many result in death, or some serious bodily injury which may produce the death of his adversary or himself, he cannot claim that he is acting in self-defense. Willson’s Texas Orim. Laws, § 982.
“Apply these rules to the facts. Defendant brought on the affray, and evidently with the intention to wreak his malice upon the deceased. If any necessity arose for him to kill the deceased to protect himself from injury, that necessity was produced by his own willful and malicious act.”

We would emphasize the law as announced by Judge Willson in that case, and we gather the impression from appellant’s own testimony he pursued deceased to force him to humbly apologize, or else to wreak his vengeance upon him. But in deference to the view taken by the trial court we do not feel authorized to hold that the issue was not raised, and for that reason the errors above pointed out present reversible error. And if self-defense was raised, then the matters hereinbefore referred to necessitate a reversal, and the judgment is reversed, and the cause remanded.
      <@=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    HAMILTON v. STATE.
    (No. 3556.)
    (Court of Criminal Appeals of Texas.
    May 19, 1915.
    Rehearing Denied June 16, 1915.)
    Burglary <&wkey;42 — Sufficiency oe Evidence.
    ■ Evidence of the identity of fan, taken under circumstances constituting burglary, with a fan taken by defendant to a certain place, defendant making no explanation, but only a denial, warrants a conviction of burglary.
    [Ed. Note. — Eor oth&r cases, see Burglary, Cent. Dig. §§ 80, 104-107; Dec. Dig. <@=s>42.]
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    I-Cyle Hamilton was convicted, and appeals.
    Affirmed.
    A. J. Schnitzel and Y. M. Clark, both of Houston, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of burglary, and his punishment assessed at. two years’ confinement in tlie State penitentiary.

There are no bills of esception in the record, and no exception was reserved to the charge of the court as given; consequently the only question we can review is: Will the testimony sustain a conviction?

It. T. Mayes testifies to the loss of an electric fan; that it was taken without his consent; and the facts show that whoever took it is guilty 'of burglary. The facts relied on by the state to show that appellant took it are that on the day of the loss of the fan appellant stopped and talked to Mr. Mayes, and could have and doubtless did see the fan. This was about 5 o’clock in the afternoon, and the fan was stolen between dark and 12 o’clock that night. Mayes says he had scratched his initials, “R. T. M.,” on the blade of his fan with a knife; that the fan the officers recovered looks like the same size fan; that there was an “R” on the blade; that the next letter looked like a “T” scratched over, and there was an “M” on the fan; and said, considering the letters found on the fan, its shape and size, etc., in his best judgment it was the fan he lost. The officer testified to getting the fan at a fancy house in Galveston, appellant being present when he got the fan introduced in evidence, and the evidence would authorize a finding that appellant had carried the fan to this house.

Appellant does not explain where he got the fan he carried to the woman’s house, if he carried it there, contending he did not do so, but says the fan the officers got from the house was not in the condition of the fan introduced in evidence, saying:

“It has not got the same appearance now it had when the officer got it. It was shiny and a new-looking fan, and the blades were brass and polished, and not a scratch o<r blemish on the thing, and did ont have a mark on it.”

We are of the opinion the evidence authorized a conviction, and the trial court did not err in so holding.

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


text:
    HOWE v. STATE.
    (No. 3552.)
    (Court of Criminal Appeals of Texas.
    May 26, 1915.
    Rehearing Denied June 16, 1915.)
    1. Criminal Law <&wkey;419, 420 — Evidence — Heabsay.
    Testimony as to what others told witness that deceased had said would be hearsay.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 973-983; Dec. Dig. <&wkey; 419, 420.]
    2. Homicide <&wkey;158 — Evidence—Threats.
    A threat made by defendant to kill is admissible, though deceased’s name was not mentioned at the time, if it can be reasonably gathered from the evidence that deceased was then meant.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 293-296; Dec. Dig. &wkey;158.]
    3. Homicide <&wkey;190 — Evidence—Uncommu-nicated Statements oe Deceased.
    Defendant having introduced evidence of uncommunicated threats of deceased against him, as bearing on the acts and conduct of deceased at the time of the homicide, as permissible where self-defense is in issue, the state, to rebut such evidence, may introduce evidence of statements of deceased, uncommunicated to defendant, made after the threats, and just before the homicide, to show a changed state of mind.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 399-413; Dec. Dig. <§^190.]
    4. Homicide <&wkey;309 — Evidence—Manslaugh-tee.
    Evidence in a homicide case held not to raise the issue of manslaughter, but of self-defense.
    [Ed. Note. — For other eases, see Homicide, Cent. Dig. §§ 649, 650, 652-655; Dec. Dig. <&wkey; 309.]
    5. Cbiminal Law &wkey;>938 — New Trial — Newly Discovered Evidence.
    As regards a new trial, the testimony of one for whom defendant had issued process, and of which he knew before trial, and of whose absence he knew, when announced ready for trial, was not newly discovered.
    [Ed. Note. — For other cases, see Criminal Law, Cent Dig. §§ 2306-2315, 2317; Dec. Dig. &wkey;938.]
    6. Criminal Law &wkey;>939 — New Trial — Newly Discovered Evidence — Diligence.
    As regards a new trial for testimony of persons who were at the scene of the homicide, there was lack of diligence in not discovering it for the trial, which was three months after the killing; defendant’s father and grown brothers, interested in his case, living in the neighborhood.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2318-2323; Dec. Dig. 939.]
    7. Criminal Law <&wkey;941 — New Trial — “Cumulative Evidence.”
    Evidence is cumulative, for which, though newly discovered, new trial will not be granted, where it only multiplies witnesses as to one or more facts sworn to at the trial, or only adds other circumstances of the same general character.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2328-2330; Dec. Dig. 941.
    For other definitions, see Words and Phrases, First and Second Series, Cumulative Evidence.]
    8. Criminal Law <&wkey;957 — New Trial — Hearing — Evidence.
    It cannot be said the court erred in overruling a motion for new trial, though E. filed an affidavit that he talked with, B., one of the jurors, about the case, and at his request detailed to him the facts within his knowledge, and that B. expressed the opinion that defendant should be severely punished; E. having in his testimony, on the hearing of the motion, refused to positively identify B. as the man he talked with, who was clean shaven, while B. at the hearing had whiskers, and B. by affidavit and at the hearing having denied any such conversation with E. or any one else.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2392 — 2395; Dec. Dig. 957.]
    Appeal from District Court, Bowie County; H. F. O’Neal, Judge.
    Clarence Howe was convicted, and appeals.
    Affirmed.

      O’Neal & Allclay, of Atlanta, and Jones & Henry, of De Kalb, for appellant. O. 0. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of murder, and his punishment assessed at five years’ confinement in the state penitentiary, from which judgment he prosecutes this appeal.

It appears that appellant and deceased had been friends for many years until about April of last year. Deceased was a member of the mercantile firm of Murphy Bros., doing business at Maud, in Bowie county; the members of the firm being A1 Murphy and deceased, Lee Murphy. Deceased was about 28 years of age. Some time prior to last April appellant’s father, Emmett Howe, went into the livery business at Maud, and his two sons, Henry Howe and appellant, were assisting him in running the stable. Henry is about 21 years of age, while appellant was only 18. It appears that when Emmett Howe went into the livery business he solicited the hauling of Murphy Bros., and agreed to do the hauling at a given price; Murphy Bros, representing to them that they had more hauling than any other firm in the town. Henry says that, after doing the hauling for a while, they ascertained other firms in the town had as much hauling to do as did Murphy Bros., and they notified Lee Murphy that they could no longer haul at the price agreed on, but would in future charge them the same as others were charged. Murphy Bros, ceased giving their hauling to appellant’s father, and had others to haul for them.

Emmett Howe, appellant, and his brother all say that deceased not only ceased to patronize them, but threw their influence in favor of another livery stable in the town, and refused to purchase from drummers who patronized their livery stable, thus materially injuring their business. And here we might say the court did not err in refusing to permit Mr. Emmett Howe to testify what the drummers told him deceased had said about patronizing his stable. This would be hearsay and inadmissible. If appellant desired to prove what deceased had said to the drummers about patronizing his father’s livery business, he should have called the drummers to so testify. This culminated in trouble in April of last year; Henry Howe saying he went to see deceased about the matter, and while they were talking appellant came up. Without discussing who brought about the difficulty that ensued, it appears that appellant and his brother got the best of this difficulty, having to be pulled off of deceased. Roy Beard testified that on the day of this difficulty, and immediately thereafter, appellant came to his father’s restaurant, and in talking with him said he was going to kill Lee Murphy, the man he afterwards killed, in October. According to defendant’s testimony deceased entertained ill will towards, him from the date of this difficulty in April until the day of the homicide, and on several different occasions, had made threats to kill him, some of which were communicated and some of which were not.

The state called L. E. Fisher, who testified that he was with appellant the latter part of July talking to him, when Lee Murphy, the deceased, drove by, and appellant then remarked to him, “He bet he would kill somebody before Christmas.” It is a fact that he did kill somebody before Christmas, and it was the man who drove by just before he made the remark he would kill somebody before Christmas. Appellant does not say, if he made the remark, he had reference to any other person than Murphy, but simply denies making the remark at all. This was objected to on the ground that he did not call Murphy’s name, and did not individuate him as the man referred to, if appellant did make the remark. This objection might be tenable, if there were no other facts and circumstances in the record to show to whom he did refer, if he made the remark. But the record, in our opinion, teeans with facts and circumstances that, if appellant used the language attributed to him by Mr. Fisher, he referred to Murphy, and to no other person. Appellant cites us to a number of cases wherein it is held that if the person on trial makes general threats, and there is nothing in the record to show that the deceased was the person referred to when the threat was uttered, such threats are inadmissible. This is a correct rule, and one to which this court has at all times adhered; but there is another rule to which appellant does not refer, and that is, though the name of deceased be not mentioned when the threat is made, yet if it can be reasonably gathered from the evidence that deceased was meant when the threat was mentioned, it is admissible. Miller v. State, 81 Tex. Cr. R. 636, 21 S. W. 925, 37 Am. St. Rep. 836; Williams v. State, 40 Tex. Cr. R. 501, 51 S. W. 220; Sebastian v. State, 41 Tex. Cr. R. 251, 53 S. W. 875; Thomas v. State, 42 Tex. Cr. R. 386, 56 S. W. 70; Taylor v. State, 44 Tex. Cr. R. 549, 72 S. W. 396; Marchan v. State, 45 Tex. Cr. R. 214, 75 S. W. 532; Armstrong v. State, 50 Tex. Cr. R. 469, 98 S. W. 844; Hardy v. State, 31 Tex. Cr. R. 289, 20 S. W. 561; Mathis v. State, 34 Tex. Cr. R. 39, 28 S. W. 817; Davis v. State, 56 S. W. 53. The record before us does not disclose that appellant had had any serious trouble with any other person in Maud from April to October, and the threat being made shortly after the difficulty in April, and it being apparent, from the testimony offered by appellant, that the same conditions existed at the time he made the remark, if he made it, that existed at the time of the difficulty in April, and other remarks and threats testified to, render it morally certain that appellant referred to Lee Murphy, if he made the threat testified to by Mr. Fisher.

The only other bills of exception in the record relating to the admissibility oí testimony complain that the court erred in permitting H. S. Irby to testify that on Tuesday, before the killing took place on Saturday, he was talking with Lee Murphy, deceased, and asked him, “How are you and the Howe boys getting along?” when deceased replied, “All right as far as I am concerned in the matter ; I am through with it for good, absolutely.” Also the testimony of A1 Murphy, who testified, in substance, to the same effect. The contention is that appellant was not present, had not been informed that deceased made such remark, or had no knowledge' of it at the time the killing occurred. Ordinarily the objection would be good, and should have been sustained. The court, after admitting the testimony, reconsidered his action, and excluded it from the consideration of the jury, and instructed the jury not to consider it for any purpose. Thus, if the court erred in admitting the testimony, he did his best to rectify the wrong during the trial; but appellant insists that the effect was so damaging the evil effect could not be removed by withdrawing it from the consideration of the jury. We do not think so. Roberts v. State, 48 Tex. Cr. R. 210, 87 S. W. 147; Hatcher v. State, 43 Tex. Cr. R. 239, 65 S. W. 97; Trotter v. State, 37 Tex. Cr. R. 474, 36 S. W. 278; Jones v. State, 33 Tex. Cr. R. 8, 23 S. W. 793; Miller v. State, 31 Tex. Cr. R. 636, 21 S. W. 925, 37 Am. St. Rep. 836; Morgan v. State, 31 Tex. Cr. R. 1, 18 S. W. 647; Sutton v. State, 2 Tex. App. 348; Robinson v. State, 63 S. W. 870.

But we are not going to rest our opinion, that these bills present no error, on the ground that the testimony was withdrawn, although we might do so. Under the record in this case we think the testimony was admissible. Appellant introduced witnesses who testified to threats made by deceased which he admits were not communicated to him, and at his request the court instructed the jury:

“You are further instructed that, if the deceased, Lee Murphy, prior to the time he was killed, made threats against the life of the defendant, or to do him serious bodily harm, and that said threats were so made, but that same were not communicated to defendant, then you can consider such threats for the purpose of showing' the state of mind of deceased at the time he was killed, and for the further purpose of determining who probably began the difficulty.”

Now, if appellant could and did introduce these uncommunicated threats to show the state of mind of deceased, and who began the difficulty, if the state had evidence which tended to show that after deceased had made these threats, and he, at a time just before the difficulty, was not in the state of mind the uncommunicated threats would indicate, why is it not permissible for it to so show in rebuttal of the testimony offered by defendant’ to show the state of mind of deceased? It may be true he was not told of these remarks; neither was he aware of the uncommunicated threats, and when he introduces the uncommunicated threats to show the state of mind of deceased, it is permissible to show, if the state can do so, that these uncommunieated threats did not correctly show the state of mind of deceased, but, since uttering them, he had undergone a change of mind. Evidence is admitted to ascertain the truth, without bias in favor or against the state or defendant, and although these un-communicated threats, introduced by appellant, could not have any bearing on the mind of appellant, nor influence his course, because he did not know of them, yet they have always been held admissible hr this state on the ground they would aid the jury in passing on what occurred at the time of the homicide when self-defense is an issue whether or not the acts of deceased at the time, viewed in the light of the uncommunicated threats, were such as to lead them to believe that he began the difficulty, or was the initial wrongdoer in bringing about a condition of affairs which resulted in the homicide. Uncommunicated threats are admitted as bearing on the acts and conduct of deceased at the time of the homicide, while communicated threats may shed light on the acts and conduct of the defendant, and aid the jury in passing on the matter as to how it reasonably appeared to him. As the uncommunicated threats were introduced by defendant' for the purpose of having the jury take them into consideration in passing on whether or not his contention was correct that deceased, when he spoke to him, reached for a pistol, and as he introduced such testimony for such purpose, it was permissible for the state to show that since uttering the threats, of which appellant had no knowledge, and therefore could not have influenced him, deceased had undergone a change of mind. If no uncommunicated threats had been introduced by appellant, such testimony would not be admissible; but, when either the state or defendant introduces evidence to prove a given fact, it can be rebutted by the opposite party by proof of a similar character and kind.

In the next bill of exceptions is a complaint of the court’s charge in presenting manslaughter*. In his brief this ground is not presented, and in the oral argument before this court it was conceded by appellant’s counsel that the charge was in conformity with the decisions of this court. However, we will state we do not think the issue of manslaughter is raised by the testimony in this case. There is proof of a difficulty which occurred in April; then proof of threats, both communicated and uncommunicated, and especially proof of a threat which is alleged to have been made on Thursday before the killing, and communicated to appellant on the day of the difficulty. Appellant says he was loading ties when his brother communicated to him the threat made on Thursday. Henry Howe testified that on Thursday he met deceased In Sulpliur bottom, and deceased said, “Have you got any advantage of me now?” and, upon replying “No,” deceased said, “We are going to bave some trouble.” He replied, “It is a good place,” wben deceased pulled up a gun, and Henry says be told deceased be was not prepared for any sucb trouble, and deceased put down tbe gun, and asked bim where was Clarence (tbe appellant), and said, “He is tbe son of a bitcb I want; I am going to kill bim.” A few other words passed, but no difficulty occurred. Henry and Egbert Howe say they told appellant about this Saturday morning, and told bim wben be went to Maud that day to stay out of deceased’s way. Appellant says be went to Maud, and admits that be said during tbe day to Lee Rachel, “There goes Lee Murphy; I want to see bimand- that later be did see deceased. He says be was walking up tbe street, and saw Murphy, deceased, talking to Jim McDonald; that when be got in about 10 feet of them be said, “Mr. Murphy, why was it you said those words to my brother in tbe bottom tbe other day?” Appellant says deceased made no reply, but turned towards bim and took a step or two, throwing bis right band to bis hip pocket, wben be shot; that be would not bave shot, bad be not put bis band back there. No witness says Murphy said a word when appellant accosted bim. The contest in the evidence is whether or not Murphy threw bis band to his hip pocket. Tbe state’s testimony is that Murphy bad a check in bis band, and wben appellant accosted bim be made no demonstration whatever, merely turning to see who it was spoke to bim, wben appellant shot and killed bim; that Murphy was in bis shirt sleeves and unarmed. As hereinbefore stated, appellant’s theory, which finds support in tbe testimony of bis witnesses, was that, wben be accosted Murphy, Murphy started towards bim, throwing his hand to his hip pocket. 1-Iis testimony presents tbe issue of self-defense, not manslaughter. Eggleston v. State, 59 Tex. Cr. R. 548, 128 S. W. 1105.

There was no other exception reserved to tbe charge of tbe court, but appellant did reserve an exception to the refusal of tbe court to give bis special charge No. 2. This charge was sufficiently embraced in the main charge, in tbe absence of any exception to the charge as given in tbe respect complained of.

These are all tbe bills of exception in the record, but appellant contends that the court should bave granted bim a new trial on account of newly discovered testimony. Tbe testimony of H. O. Riley cannot be claimed to be newly discovered. The record shows that appellant bad bad process issued for this witness, and be knew of bis testimony before tbe trial. If he did not desire to go to trial without tbe presence of this witness, he should have moved to continue the case on account of bis absence. He could not announce ready, take bis chance on acquittal, and, in tbe event tbe verdict was adverse to bim, expect to get a new trial on account of testimony of a witness for whom be bad bad process issued, and whom be knew was not in attendance on court. In addition to this-, tbe affidavit of Mr. Riley shows bis testimony would be tbe same as that of bis brother, Jule Riley, who on the trial testified that on Thursday before the killing he saw deceased at the barn of Howard Warrington, and deceased had a shotgun with bim on that occasion. Appellant never saw deceased that day, and, bad be moved to continue on account of tbe absence of H. O. Riley (which be did not do), tbe testimony would not be of that material character which would have authorized a continuance, and certainly presents no ground for a new trial, when be went to trial voluntarily, knowing tbe witness was not in attendance on court.

Tbe testimony of S. P. Holliday and J. W. Fowler, appellant says, is newly discovered, and in so far as this record goes there is nothing to show that be did know what they now say they would testify. However, both witnesses place themselves at tbe scene of tbe killing and say they witnessed it. Tbe killing took place October 8, 1914; the trial did not take place until tbe 1st of January, 1915. It seems to us tbe use of due diligence would bave enabled appellant to have discovered the names.of all parties who were present at the scene of the homicide and ascertained to what they would testify. In White’s Ann. Code Cr. Proc. g 1149, subd. 4, the authorities are collected, and tbe rule stated to be:

“The motion does not show diligence by simply alleging that the facts were not known to defendant, and could not have been discovered by the use of ordinary diligence. * * * Want of diligence in the discovery of evidence is not. excused by confinement in jail, when it is not further shown that the accused was without friends * * capable of rendering him the necessary assistance.”

Appellant’s father and two grown brothers resided in and near Maud. They by their testimony on this trial show that they feel a deep interest in tbe case, and tbe fact that Messrs. Holliday and Fowler witnessed tbe difficulty, and what they would testify, could have been ascertained by appellant, his father, and brothers by the use of ordinary diligence. But, if this were not true, the same state of facts to which Messrs. Holliday and Fowler say they would testify is sworn to on tbe trial by Mr. W. H. Massey, appellant’s father, Emmett Howe, and other witnesses, as well as by appellant, and it is well established by tbe decisions of this court that a new trial will not be granted for newly discovered testimony which is merely cumulative. Evidence is cumulative which only multiplies witnesses as to one or more facts already sworn to by witnesses, and only adds other circumstances of the same general character. Ma Riojas v. State, 36 Tex. Cr. R. 183, 36 S. W. 268, and cases cited in section 1149, subd. 6, White's Ann. Proc.

The only other question presented is one that has given us no little difficulty. The record shows that Jack Bartlett was one of the jurors who tried appellant. Dr. H. P. Evans files an affidavit that he talked with Mr. Bartlett about this case, and at his request had detailed to him the facts within his knowledge, and Mr. Bartlett had expressed the opinion appellant should be severely punished. The state contravenes this ground of the motion, and attaches the affidavit of Mr. Bartlett, denying that he had ever talked with Dr. Evans about the matter, or that he had ever expressed an opinion to him or to any one else. If this was all we had before us, we would feel inclined to sustain appellant’s contention; but it appears that the court heard both Dr. Evans and Mr. Bartlett testify when he heard the motion for a new trial, and that on that hearing Dr. Evans would not positively identify the juror as the man who talked to him, while Mr. Bartlett was very positive that he was not the man. Dr. Evans says the man who talked to him was clean shaved; that with the whiskers the juror Bartlett had on his face at the time of the hearing on the motion for a new trial he would not be willing to state that he was the man, and under such circumstances we cannot say the trial court erred in overruling the motion for a new trial.

The judgment is affirmed.
      —.Unr other cases seelame topic and KEY-NUMBER in all Key-Numbered Digests and Index»*


author: DAVIDSON, J. PRENDERGAST, P. J., and HARPER, J.

text:
    CROWDER v. STATE.
    (No. 3563.)
    (Court of Criminal Appeals of Texas.
    June 2, 1915.
    Concurring Opinion, June 5, 1915.)
    1. Criminal Law <$=>400 — Evidence — Best and Secondary.
    The best evidence that the house burned was insured is the policy, and, it not appearing that it could not be produced, testimony that it was insured is objectionable as secondary.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 879-886, 1208-1210; Dec. Dig. <S=>400. ]
    2. Criminal Law <$=656 — .Trial—Remarks of Court.
    Eor the court, when defendant offered in evidence pending indictments for felonies against a state’s witness, to say to the jury, “Xou will not consider the byplay of defendant’s lawyer,” and, on objection, to say, “Xou will not consider the remarks made by the court, but, if you can think of a more appropriate name for it, do so,” is improper.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1524-1533; Dec. Dig. <$= 656.]
    3. Indictment and Information <$=>111 — Burning with Owner’s Consent — Negativing Defenses.
    Though defendant burned G.’s house. with his consent, the indictment need not, as in an indictment against G., negative the conditions which would save him from guilt, but the indictment merely charging that defendant burned G.’s house, and such consent, a matter of defense, appearing in the evidence, the state could in rebuttal negative such conditions.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 295-298; Dec. Dig. <$=>111.]
    Davidson, J., dissenting in part
    Appeal from District Court, Grayson County; M. H. Garnett, Judge.
    B. E. Crowder was convicted, and appeals.
    Reversed and remanded.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

The indictment, omitting formal parts, recites that appellant “in the county and state aforesaid, did unlawfully and willfully and fraudulently set fire to and burn the bouse of G. E. Gregory, there situate.” It is contended in various ways that the case cannot be sustained on the indictment nor under the facts. Without taking up the matters seriatim, but treating the subject generally, the state’s theory of the case was that Gregory owned a house in the town of Tombean, and employed Giles, a witness who. turned state’s evidence, and appellant to burn that house; that this conspiracy and agreement was entered into in Sherman; that Giles and appellant went to Tombean at night and burned the house or set it on fire. There was a small burned place in one of the rooms. Eor this service on the part of Giles and appellant they were to get $15. The theory of the state was, farther, that Gregory carried insurance on the house, and that the burning was for the purpose of Gregory securing the insurance. It is also the contention of the state that the house was situated with reference to other houses so that it was possible for some of them to have caught fire had Gregory’s house burned. This is a sufficient statement of the case to bring in review both law and facts.

It is not a violation of the law in Texas for an owner to burn his own house, except where it would affect others, either an insurer or burn his neighbor’s property as an incident to burning his own house. There is no .question of the fact or the law that if Gregory had been charged with burning the house, being the owner, the indictment, to be valid, must allege that the house was insured, or that it might burn his neighbors’ houses. In other words, the owner must be brought within the statutory exceptions. If Gregory would not be legally responsible under the statute of arson for burning his house, then appellant or Giles would not be criminally liable. Their guilt depended upon the guilt of the owner of the house, and, if it was necessary in order to constitute Gregory criminally responsible, it would be necessary also to show that his confederates were guilty; they doing the actual burning. The state’s theory, as before stated, was a conspiracy between Gregory, the owner of the house, and Giles and appellant to burn the house, that Gregory might obtain the benefit of the insurance, for which he was to pay appellant and Giles $15. If Gregory had a right to burn his house personally, he would have the same right through any other person. They were but the agents of Gregory, and the same facts which would make Gregory responsible criminally would be necessary to make them responsible. If Gregory was innocent, appellant could not be guilty, because they were but aiding him by burning the insured house. Appellant raised these questions as to the facts against the indictment in the motion for new trial and exceptions to charges. The court admitted testimony against appellant in these matters, and charged the jury that, if appellant burned the house, or set fire to it, from the standpoint of its being insured, or that it would injure contiguous property, they would convict. Exceptions were urged to this, among other things, upon the ground that there was no allegation in the indictment authorizing such charge or instruction. We believe these contentions to be sound. Whatever was necessary to be proved was necessary to be alleged, and the state could not obtain a conviction against appellant in this case except it was shown that Gregory’s house was insured. The evidence is uncontroverted that he had Gregory’s consent to burn the house; not only so, but the state’s theory was that he was the employé of Gregory to do that very thing. If Gregory had been tried for it, it would have been obligatory and imperative that the state should plead the fact that he burned the house for some one of the purposes mentioned in the statute; otherwise he would not be guilty. It seems that Gregory was not present at the burning, but the state’s theory was that Giles and appellant were acting together as his agents. The house was not, in fact, burned, but fire was set to it, and there was some burning in one of the rooms which would tend to show that the burning was sufficient under the statute. The fact that the house was insured being an essential element of the offense, it was necessary to allege it, and, of course, being an essential element, could not be omitted from the indictment. Erom this viewpoint the indictment is insufficient. Arnold v. State, 168 S. W. 122; Baker v. State, 25 Tex. App. 1, 8 S. W. 23, 8 Am. St. Rep. 427.

A bill of exceptions was reserved to the testimony of Dr. Jackson while on the stand as a witness for the state. He was asked the question whether or not the house was insured at the time of the alleged arson, and was permitted to testify over various and sundry objections, as follows:

“I saw the policy and knew the house was insured.”

The court qualifies this bill with the following statement:

“Given with this qualification: The witness Dr. Jackson stated that he knew the house was insured; that he had the insurance policy in his possession; that it was placed with him by G. A. Gregox-y to secure a debt due from Gregory to witness.”

Among the objections urged was that the testimony was irrelevant and immaterial to any issue in the case, there being no allegation in the indictment that said house wis insured; that said testimony was a variance from the indictment, and did not correspond with same, and was prejudicial to the rights of the defendant. The answer sought was hearsay, and, if the house was insured, the policy would be the best evidence. Resort to secondary evidence was not permissible; there being nothing to show that the policy was lost or mislaid. The insurance policy was not introduced in evidence. We are of opinion that these objections were well taken. Where the intent is to injure or defraud an insurance company, the corporate existence of the company must be proved. But it has been held that proof of de facto organization is sufficient if the case is one of public prosecution in which the insurer is not a party, and into which it is merely collaterally introduced. This record, it will be observed, does not even undertake to show that' there was qny corporation of any sort; it does not even undertake to introduce the policy of insurance. Dr. Jackson’s testimony does not meet the issue, and from that viewpoint the testimony was inadmissible. Again:

“It has been held that the proof as to insurance should be by the policy as the best evidence, unless some reason for not producing it is shown. But, if the policy cannot be produced, its contents may be proved by parol.”

The authorities upon this proposition are numerous, and will be found collated in volume 5 of Am. & Eng. Ency. of Law & Practice, on page 638, in footnotes. The question was raised that Dr. Jackson’s testimony was not admissible, and the judge’s qualification makes it apparently certain that Dr. Jackson had the policy of insurance in his possession, where he says Gregory placed it as security for a debt due from Gregory to him (Jackson). So there was no question of the fact that the policy could be produced. There was no affidavit of its loss, or that it was beyond the reach of the process of the court. The production of the policy might have brought many questions from the face of it, but it was not produced, it was the' best evidence, and the objections were urged and overruled, and we think erroneously. Moore v. State, 146 S. W. 183.

There is another bill of exceptions reserved to the admission of testimony that there were contiguous houses to the one alleged to have been burned. This was raised in the first proposition discussed. There was no allegation in the indictment to bring it within the statutory rule. If an indictment is properly framed covering this question, such testimony might become relevant or introducible, but not under this indictment.

Another bill recites that, while Ancel Barker was testifying for the state, he said:

“I remember the occasion of the burning of the house at Tombean. The only conversation I' had with the defendant he came to the livery barn and said he wanted a horse and buggy. I never saw the large man until I saw him in jail. I do not know whether it was a stocking leg horse or not; my information was that the horse came from Tombean country.”

This is a quotation from the bill of exceptions. The bill further recites that defendant got the horse and buggy; that was the night on which the defendant is charged with arson. Thereafter the defendant offered in evidence five indictments pending in the district court charging the witness with various felonies, and offered in evidence a judgment of conviction against the witness on a felony charge, which judgment had not been appealed from. Said judgment suspended the sentence of said witness. Defendant offered said indictments and judgment for the purpose of affecting the credibility of the witness; he having given damaging testimony against the defendant. Whereupon the court said in the presence and hearing of the jury:

“Gentlemen, you will not consider the byplay of defendant’s lawyer.”

The defendant objected to the remarks of the court; whereupon the court remarked:

“Gentlemen, you will not consider the remarks made by the court, but, if you can think of a more appropriate name for it, do so.”

“Various objections were urged to these remarks of the court. We are of opinion that the remarks of the court were inappropriate; the testimony was legitimate as an attack on the standing of the witness, except the judgment which was suspended, and should have gone to the jury for their unbiased consideration. The remarks of the court would seem to indicate, by using the words “byplay of defendant’s lawyer,” and the further remarks in withdrawing his remarks, “but, if you can think of a more appropriate name for it, do so,” to the jury, that the lawyer was indulging in the introduction of testimony that was worthless or of no service or value, and, we think, within the inhibition of the statute.

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

PRENDERGAST, P. J., and HARPER, J.

We concur in the reversal of the case on account of the error in admitting the testimony of Dr. Jackson. We agree that the best evidence that the house was insured was the policy of insurance, and, this being within the jurisdiction of the court, it should have been produced, and oral evidence of the contents of such policy not admitted. It was also improper for the court to make the remarks shown in the bill of exceptions to have been made and discussed in the opinion. But we do not concur in the remainder of the opinion.

The indictment alleged:

“On the 9th day of September, A. D. 1914, B. E. Crowder, in the county of Grayson and .state of Texas, did unlawfully and willfully and fraudulently set fire to .and bum the house of G. B. Gregory, there situate,” etc.

This indictment specifically ' and fully charged the offense of arson as defined by article 1200 of the Penal Code. And, when the state introduced evidence that appellant had set fire to and burned the residence of G. E. Gregory, it made a case. It is true that article 1207 provides that the owner of a house may destroy it by fire or explosion without incurring the penalty of arson, except in the cases mentioned in article 1208. And this article provides that the owner may not burn his house when it is situate within a town or city, or when it is insured, or when, there is within it any property belonging to another, or when there is apparent danger by reason of the burning thereof that the life or person of some individual, or the safety of some house belonging to another will be endangered, the owner, if he does burn the same, is guilty of arson.

Now, when the state introduced proof that appellant set fire to and burned the house of Gregory, and appellant relied on the fact that he had the consent of Gregory to burn the house, this would be a matter of defense to be shown by the testimony adduced. And, if such a defense was raised by the testimony, then it would be permissible for the state to show that such consent was no defense, by showing that he knew the house was insured when he burned it, and did so at the instigation of the owner. This would be admissible in rebuttal of the defense that he had the consent of the owner. The owner, under such circumstances, would have no authority to give consent, for, if he burned it, under such circumstances, he (the owner) would be guilty of arson. The indictment charges the offense; the testimony adduced on this issue was properly admitted in evidence, and, but for the grounds first herein stated,, the judgment should be affirmed.
      <@s>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    THOMPSON v. STATE.
    (No. 3600.)
    (Court of Criminal Appeals of Texas.
    June 2, 1915.)
    1. Witnesses <&wkey;379 — -Witness for State-Right of State to Impeach.
    Where, in a murder case, the question whether defendant got his pistol from his room before or after the commencement of his controversy with deceased was material, and a witness for the state, testifying contrary to the testimony given by her at the preliminary hearing, stated that he got the pistol before the commencement of the controversy, the state had a right, under Code Cr. Proc. 1911, art. 815, permitting a party introducing a witness who proves hostile to attack his testimony, to introduce evidence tending to discredit her by showing what occurred between the witness and the prosecuting attorneys just before they placed her on the- stand, and that after the killing she lived several months with the family of defendant’s father-in-law.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1209, 1220-1222, 1247-1256; Dec. Dig. &wkey;379J

      2. Homicide <&wkey;309 — INSTRUCTION on Man-. SLAUGHTER — EVIDENCE.
    Where the only issues raised by the evidence were murder, as established by the state’s evidence, and self-defense, as claimed by defendant, an instruction on manslaughter should not have been given.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig-. §§ 649, 650, 652-055; Dec. Dig. <&wkey;> 309.]
    3. Homicide i&wkey;340 — Harmless Error — Instruction on Manslaughter.
    Where the testimony of defendant in a murder case showed no prior difficulty between him and deceased other than what occurred at the immediate killing, error in giving, without evidence to authorize it, an instruction on manslaughter, which quoted Pen. Code 1911, art. 1129, subd. 1, providing that provocation must arise at the time of the commission of the offense, and that the passion must not be the result of a former provocation, was harmless.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. §§ 715-717, 720; Dec. Dig. &wkey;340.]
    4. Criminal Law &wkey;>823 — Harmless Error-Instruction on Manslaughter.
    The giving of an instruction on manslaughter which quoted Pen. Code 1911, art. 1129, subd. 1, providing that provocation must arise at the time of the commission of the offense, and that the passion must not be the result of a former provocation, was not prejudicial, though it was not authorized by the evidence, where the court also stated that in determining whether adequate cause existed at the time of the killing the jury may consider all of the facts and circumstances in evidence occurring both at the time and prior to the time of the killing.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 1992-1995, 3158; Dee. Dig. <&wkey;S23.]
    Appeal from District Court, Tarrant County; James W. Swayne, Judge.
    Jack Thompson, alias Jim Thompson, was convicted of murder, and appeals.
    Affirmed.
    H. D. Wood, Sam'S. Beene, and A. W. Cameron, all of Pt. Worth, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of the murder of John West, and his punishment assessed at 10 years in the penitentiary.

The killing occurred between 5 and 6 ic’clock in the evening of August 29, 1914, at the house of Bessie Williams (Joyce), in the the city of Pt. Worth. During said evening the deceased, appellant, and perhaps two other parties were at the house of Bessie Williams, and all of them drank considerable alcohol and were pretty drunk. Bessie Williams was a prostitute. Deceased had kept her for some time. However, he had been away a short while, and for three or four days just before he returned, she said, appellant had stayed with her. He denied this. After carousing some time the other parties left Bessie Williams’ place, leaving only Bessie, appellant, and deceased there. According to the state’s testimony, which was ample to establish that state of facts, about 5 o’clock that evening deceased got into a row with Bessie and slapped her down on the bed. Appellant asked him to desist, and deceased told him he had not anything to do .with her,- and then pushed him out of the house; that appellant then went about a mile from there to the house of May Kelly, where he claimed he had a room, procured his pistol, and, after being gone about 30 minutes, returned to Bessie’s, when, as testified by her, deceased was standing on her porch fixing to make a cigarette, she standing beside him; that when appellant got in 15 or 20 feet from him, without deceased saying a word to him, or making any demonstration whatever, appellant got behind a little tree, got his pistol out, and immediately shot deceased four times, twice in the left side under the heart, another two inches lower, and the other striking deceased in the right side above the hip bone; that when appellant began shooting deceased turned and went back or fell back into the house. I-Ie expired very soon thereafter. The appellant then fled.

The appellant claimed, and so testified, that he went to Bessie Williams’ with and at the instance and invitation of deceased that evening; that he had with him at that time his pistol, having gotten it from his room soon after dinner that day; and that he did not go and get it after his interference in the row between the deceased and Bessie. His version was that when he tried to separate Bessie and deceased when they began fighting that deceased, while they were in the house, grabbed up off of the table a butcher knife eight to ten inches long and attacked him with it; that he then pulled his pistol and began backing, and hacked out of the door, with deceased following after him with the butcher knife, when he shot him the four times in self-defense; that he did not know at that time he had killed him, but left immediately after the shooting; that after he first went to said house in the early part of the evening he did not leave there at all until after the killing.

The next day after the killing an examining trial of appellant was held. May Kelly testified therein. Her testimony was taken down in writing, which she signed and swore to. Just before this trial the prosecuting attorneys had her statement and consulted with her about her testimony.' In effect, she told them that her written statement, which was read over to her at the time, was correct. The state on the trial introduced her as one of its witnesses. In her written statement she had sworn that appellant came to his room at her house about 5 o’clock that evening and got his pistol and left her house. On this trial she went back on that statement, and stated that the time he came and got his pistol was about 3 o’clock that evening, instead of 5 or after. Thereupon, over his objections, the court permitted the state to prove by the prosecuting attorneys what had occurred between them and this witness just before they had placed her on the stand, and also to prove by her that after the killing she went to Lampasas and lived several months prior to this trial with the family of appellant’s father-in-law. Appellant showed that he was a married man, had two children, and that they visited her father at Lampasas and was with them some time. In the argument before the jury, the prosecuting attorneys commented on May Kelly’s change of testimony, and in connection therewith the fact that she had lived with appellant’s father-in-law after her testimony on the examining trial and before this trial. Appellant raises these questions by his bills Nos. 1, 3, and 4. We think the court’s actions and ruling were correct.

It was a material question whether appellant got his pistol at his room at May Kelly’s about 3 o’clock or whether he got it about 5 o’clock, immediately before the killing. The statute is (C. C. P. art. 815) that a party introducing a witness may attack his testimony when facts stated by the witness are injurious to his cause, in every way except by proving the bad character of the witness. There can be no question but that the state relied upon said witness May Kelly testifying on this trial what she had expressly testified to on this point in the examining trial, and which she had told them was correct immediately before they placed her on the stand. When she testified on the stand that appellant got his pistol at 3 o’clock, instead of 5, then the state could attack, as it did, and show that she had been living with appellant’s father-in-law and comment on that fact.

Appellant invokes the rule, which is well established, that it is error to permit the state to impeach its own witness where such witness merely fails to remember or refuses to testify, or fails to make out the state’s case; that a mere failure to make proof is no ground for impeaching said witness. See Mr. Branch in section 866 of his work on Criminal Law, where he collates a large number of authorities to that effect; but that rule is wholly inapplicable here, as shown above. We deem it unnecessary to take up and discuss separately appellant’s bills on this subject. What we have said disposes of all of them.

Appellant complains of one paragraph of the court’s charge on manslaughter wherein he quoted the first subdivision of article 1129, P. C., that the provocation must arise at the time of the commission of the offense, and that the passion is not the result of a former provocation.

In the first place, manslaughter is not' raised by the evidence. The court should not have changed thereon at all. Only two issues were in this case — murder, as established by the state’s testimony, and self-defense, and that alone, as claimed by appellant’s personal testimony. Besides, there is not the slightest testimony, even if. manslaughter had been raised, that shows any prior difficulty at all between appellant and deceased other than what occurred at the immediate killing according to appellant’s testimony. But, in addition to this, the court expressly told the jury, in his charge on manslaughter, that in considering whether there was adequate cause, etc., this:

“But, in determining whether adequate cause did actually exist at the time of the killing, the jury may look to and consider all of the facts and circumstances in evidence occurring both at the time and prior to the time of the killing.”

So that in no event does the court’s charge present any error.

The judgment is affirmed.
      (§=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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