text:
    THOMPSON v. STATE.
    (No. 4068.)
    (Court of Criminal Appeals of Texas.
    May 10, 1916
    1916. On Motion, for Rehearing, June 14, 1916.)
    1. Homicide <&wkey;21&wkey;EviDENCE — Admissibility.
    In a prosecution for murder, a conflict in testimony as to whether deceased was conscious when making alleged dying declarations would not render the statements inadmissible, but would go to the weight to be given them by the jury.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 460; Dec. Dig. &wkey;>219.]
    2. Witnesses <&wkey;379(l) — Impeachment.
    In a prosecution for murder, where defendant’s witness testified that she believed the deceased was unconscious when she made the statement that defendant inflicted the injuries on her head, statements made by the witness to the physician who attended deceased, prior to so testifying, were admissible as tending to impeach her.
    [Ed. Note. — For other 'eases, see Witnesses, Cent. Dig. §§ 1209, 1247; Dec. Dig. &wkey;379(l).]>
    3. Criminal Law <&wkey;595(l) — Trial—Continuance.
    In a prosecution for murder, the fact that a witness would testify that he knew the deceased was quarrelsome and knew of two men who had made threats, it not being shown that either was in a position to commit the crime, was immaterial and not ground for a continuance.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1323; Dec. Dig. <§=3595(1).]
    4. Criminal Law <&wkey;595(l) — 1Trial—Contin-uance.
    In a prosecution for murdei’, where witnesses for the state testified that they had heard defendant make threats against the deceased, testimony of an absent witness that he had never heard such threats would be immaterial and not ground for a continuance, unless the absent witness is shown to have been in a position to have heard the threats testified to.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1323; Dec. Dig. <&wkey;>595(l).]
    5. Criminal Law <&wkey;814(17) — Trial — In-structio ns — Circumstantial Evidence .
    In a prosecution for murdex-, where the case depended on direct and positive evidence consisting of dying declarations of deceased, the court properly refused to charge on circumstantial evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1883, 1979; Dec. Dig. <&wkey;> 814(17).]

      On Motion for Rehearing.
    6. Criminal Law &wkey;366(6) — Homicide &wkey; 202 — Evidence—Admissibility—Res Gest.® —Dying Declarations.
    In a prosecution for murder, where the doctor who attended the deceased within 15 minutes after the blows were inflicted believed her about to die and told her so, and, although he gave her morphine to ease her pain, believed her to be thoroughly conscious, his testimony as to her replies by nods to his questions as to who hit her, she not being able to speak plainly because of a fractured jaw, was admissible as res gestae and as dying declarations.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 820; Dec. Dig. <&wkey;366(6); Homicide, Cent. Dig. § 429; Dec. Dig. c&wkey;>202.]
    7. Criminal Law <&wkey;366(3) — Homicide &wkey; 207 — Evidence — Dying Declarations — Res Gestas.
    Testimony of another witness who arrived before the doctor as to the statements of the deceased in response to the doctor’s questions as to who struck her, although in answer to a question, were admissible as dying declarations and as res gestae, since it is no objection to a dying declaration that it is made in answer to questions, if the questions were not calculated to lead the deceased to make any, particular statement.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §819; Dec. Dig. <@=366(3); Homicide, Cent. Dig. § 439; Dec. Dig. <&wkey;> 207.]
    8. Homicide <&wkey;216 — Evidence—Admissibility.
    Statements made to the undertaker some time after the statements made to the doctor, while he was preparing to shave the head of deceased, tending to show that deceased was conscious,’-were admissible as dying declarations.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 457; Dec. Dig. &wkey;216J
    9. Criminal Law <&wkey;1133 — Appeal and Error-Presentations in Lower Court oe Grounds eor Review.
    In a prosecution for homicide, an objection that no predicate was laid for impeaching testimony cannot be presented for the first time on motion for rehearing.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2984; Dec. Dig. <@=31133.]
    10. Homicide <&wkey;166(2) — Evidence—Admissibility.
    In a prosecution for murder, testimony of a previous quarrel between deceased and defendant, and that he knew another negro was going to the house of the deceased on the night of the crime, was admissible as tending to show motive for the crime.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 321, 322; Dec. Dig. &wkey;166(2).]
    11. Criminal Law <&wkey;1092(ll) — Trial—Objections.
    In a prosecution for murder, an objection by defendant to the court’s qualification of one of his bills of exceptions should have been made before filing the bill as qualified.
    [Ed. Note. — Eor other . cases, see Criminal Law, Cent. Dig. §§ 2837, 2841; Dec. Dig. <&wkey;> 1092(11).]
    12. Criminal Law <&wkey;456 — Evidence — Opinion Evidence.
    In a prosecution for murder, where a witness testified that she had seen the deceased moaning and raising her body while the doctor was examining her wounds, and heard what the witnesses said to her, and her answers, her opinion that the deceased was conscious was admissible, although opinion evidence, since it is one of the instances where a witness in language cannot portray what she sees and observes and is permitted to express an opinion.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1045; Dec. Dig. <@=3456.]
    13. Homicide <&wkey;234(6) — Evidence — Sufficiency.
    In a prosecution for murder, where several witnesses testified' as to statements made by deceased immediately after the crime accusing the defendant, evidence held sufficient to sustain a verdict of guilty.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 487; Dec. Dig. <@=¿5234(6).]
    Appeal from District Court, Wichita County; Wm. N. Bonner, Judge.
    Charles Thompson was convicted of murder, and he appeals.

      Affirmed.

    Ralph P. Mathis and Wayne Somerville, both of Wichita Palls, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of the murder of Pearl Bransford, and his punishment assessed at death.

Dr. MacKechney testified to being called to see the woman, that he had her carried to the sanitarium, and that the wounds she received were the cause of her death. lie testified her face was literally torn all to pieces; that her upper jaw was broken, and all her teeth on the right side were broken loose, her lower jaw was brollen, and there were seven distinct wounds on her head; that he found a hammer there bloody; that there were wounds practically all over her entire scalp, and there were several places where the out.er table of her skull was broken. He says be told Mr. Nelson and his wife that he thought it was useless to attempt to do anything for her, but at their request he treated her; that in his opinion the woman was conscious; and he furthermore testified that he informed the woman she was’ going to die and that she wanted to tell the truth. Mrs. Nelson says the woman was informed that she was going to die, and the doctor thought she was dying.

The doctor’s testimony and Mrs. Nelson’s testimony would be admissible both under the res gestse rule and as dying declarations. While the statements made to the undertaker were some time after the statements were made to the doctor, yet his testimony would tend strongly to show that she was conscious, and his testimony would be admissible as a dying declaration.

There are a number of bills objecting to testimony wherein, when asked who did ■it, she would answer to “Sharles,” to others Charles Thompson, and to others would nod her head in the affirmative when asked the question. It is true that witnesses for appellant testified they did not think she was conscious, but this would not render the testimony inadmissible, but go to the weight to be given it by the jury. When the state’s witnesses testified tiiat she was conscious and informed that she was going to die, this made a prima facie case, and rendered the testimony admissible. When the defendant offered testimony that she was not conscious of what she was saying, this rendered it a question of fact to be determined by the jury. None of the bills complaining of the admissibility of this testimony present error.

The testimony of Dr. MacKechney as to what Miss Gossler said to him was admissible. Appellant introduced Miss Gussler and had her testify that in her opinion the woman was unconscious when she made the statement that appellant inflicted the injuries on her head. Any statement she had made to Dr. MacKechney prior to her so testifying would' be admissible as tending to impeach her, and the court in approving the bill says he so limited the testimony.

The testimony of a previous quarrel between deceased and appellant was admissible as tending to show motive for the crime. The witnesses testify that appellant had told the negro woman that “no other man should have her." It was shown another man called on her that evening and was to call again that night, and when he did call he found the negro woman murdered. It is shown that appellant could have and probably did know that Ben Henderson had called that evening and was to call again that night.

The court did not err in overruling the application for a continuance. While it is always permissible to show that another probably committed the crime, or that another had made threats, or had ill will, if the testimony goes further and would place such person in such proximity to the person that he might or could have committed the deed, the fact one absent witness would testify that he “knew the woman was quarrelsome, and knew of two men who had made threats,” would be immaterial, unless such other two persons, or one of them, were placed in such position where they had an opportunity to commit the offense. There is no allegation in the motion as to where the two persons were on the night of the homicide, nor is the name of either of them given. The fact that the absent witnesses had never heard appellant make any threats toward deceased would be immaterial, nor would such testimony tend to weaken the testimony of the state’s witnesses who heard and testified to the threats. Doubtless any number of men could have been picked up who would have testified, and testified truthfully, they had never heard appellant make a threat. Before the testimony of such witnesses would become material, they would have to place themselves in position to have heard the threats testified to by the witnesses for the state. There is no allegation they were present on such occasion, nor is it so contended in the record before-us. 1 1 -

Three or four witnesses testify to the fact that deceased, in her dying declaration, said appellant committed the offense, and the court did not err in refusing to charge on circumstantial evidence. It was a case depending on direct and positive testimony. If the jury had not believed the woman was conscious when she made the statements charging appellant with having inflicted the wounds which caused her death, they should not and would not have convicted him, much less assess the highest penalty known to the law.

The judgment is affirmed.

On Motion for Rehearing.

Appellant has filed a motion for rehearing, and, as the death penalty -was assessed, we have again gone over the entire record, and will again take up each question presented by appellant in his motion.

He first contends we erred in holding the testimony of Dr. MacKechney admissible as res' gestae. The testimony shows the doctor was called as soon as the woman was discovered, and this is shown by the record 'to have been very soon after the blows were inflicted. The doctor testified that:

“Prom my examination of her, and observation of her, and talking with her, I believe she was thoroughly conscious. I convinced myself of that fact, and asked her if Sam hit her, and she gave me to understand that he did not. She did not distinctly say, ‘No,’ because in her condition she could not speak plainly; but she said, as I understood it, ‘No,’ and shook her head. I then asked her if Charlie did this, and she indicated, ‘Yes,’ nodded her head.”

1-Ie says that this vtas about 15 minutes after he got to the house, and that the woman was suffering intense pain, and he gave her a dose of morphine; that he did not give her enough morphine to render her unconscious. He testified:

“All of the upper right side of her jaw was badly fractured, and her lip and cheek lacerated, and the teeth on the right hand side were loqsened clear back.”

He describes her other wounds also, but we have named these to show why she could not speak plainly. In Branch’s Penal Code, p. 52, the rule is laid-down that:

“Statements made by the deceased a short time after the homicide as to how it occurred are admissible as res gestee, * * * where * * * suffering excludes idea of fabrication,” citing a number of authorities beginning with Boothe v: State, 4 Tex. App. 208; Lewis v. State, 29 Tex. App. 204, 15 S. W. 642, 25 Am. St. Rep. 720; Chapman v. State, 43 Tex. Cr. R. 328, 65 S. W. 1098, 96 Am. St. Rep. 874.

Appellant also insists that the testimony of Mrs. Walter Nelson was inadmissible. This lady testifies to going right to the woman and getting there before Dr. Mac-Kechney did, and she says: That the doctor told the woman: “Now, Pearl, you are going' to die. You probably will die. I think you are dying, and you try to tell who killed you.” And the woman replied, “Sharles.” That when this statement was made to her by the doctor, the woman -raised herself up on her elbow and said, “Sharles.” This would be admissible both as dying declaration and as res gestae. Appellant says it was in answer to a question. That is true, but the statement or question was not such as to suggest the answer to be made. It left her free to name the person who had struck her, without any suggestion as to whom she should name. It has always been the rule that it is no objection to a dying declaration that it was made in answer to questions, if the questions were not calculated to lead the deceased to make any particular statement. Hunnicutt v. State, 18 Tex. App. 516, 51 Am. Rep. 330; Pierson v. State, 18 Tex. App. 562; White v. State, 30 Tex. App. 655, 18 S. W. 462; Grubb v. State, 43 Tex. Cr. R. 75, 43 S. W. 314; Hunter v. State, 59 Tex. Cr. R. 455, 129 S. W. 125.

Appellant next insists that the testimony of E. G. Hill was inadmissible wherein the witness testified that he was preparing to shave her hair oft and cleaning her head for that purpose, that he knew she was conscious, for when he told her to put her hand in a pan of water she did so, and while shaving her head, he would' tell her to turn her head and she would do so. He says this was not in regard to nor descriptive of the manner of the death. But this testimony was admissible on the issue of consciousness and was but introductory to permitting the witness to testify that the woman to Id him that Charlie did it, and that he hit her with a hammer. Tinder the testimony of Mrs. Nelson above as to what the doctor told the woman about her going to die, we think the testimony admissible.

Appellant now contends that there was no predicate laid to impeach Miss Gossler, and therefore Dr. MacKechney should not have been permitted to testify to the impeaching statement without a predicate being laid. It is sufficient to say that the bill .does not show that any such objection was urged in the trial court, and it cannot be presented now for the first time on motion for rehearing in this court. It comes too late.

Previous quarrels are always admissible to show motive. Appellant insists we were in error in quoting the substance of the threat testified to by Mike Osborn. The exact language is, after the woman had refused to let appellant stay with her, “if you can’t stay with me, you will never live for nobody else.” This was peculiarly admissible in the light of the facts that another negro was to go to the house the night she was killed, and she was killed before he got there. Appellant was also placed in position that he could have known that the other negro was going to deceased’s home. As to appellant’s objection to the court’s qualification of one of his bills, he should have done this before filing the bill as qualified. Blain v. State, 34 Tex. Cr. R. 448, 31 S. W. 368.

After Mrs. Dolman had testified to' seeing the woman moaning and swaying her body, raising her body on her elbows, and screaming when the doctor examined her wounds, and heard what the witnesses said to her, and her answers, there was no error in permitting her to state that in her opinion the witness was conscious. This is one of the instances in which the witness in language cannot portray what she sees and observes and is permitted to express an opinion.

The only other objection is that the testimony is insufficient to sustain the death penalty. If the evidence will not sustain the death penalty, it is wholly because appellant is not sufficiently identified as the person who committed the crime, and, if that is true, no penalty should be sustained. The mode and manner of killing this woman was most cruel and wanton. The doctor testified:

“When I arrived, in the servant house I found a negro woman lying on the floor, with her face literally beat all to pieces. I have practiced medicine for 20 years, and I have never seen anything like it. This upper jaw was broken, and all of her teeth on this side, right side, were knocked loose. Her lower jaw was broken, and she was beat over the head. I think there was seven distinct marks on her head. It looked like this had been done with a hammer, and, in fact, I found a hammer lying there on the floor, bloody, that compared with it; that is, the bit of a hammer compared with the size of the wounds on her head.”

Appellant’s counsel made an able defense and undertook to fasten the crime on another and prove an alibi for appellant. The jury solved these questions against him, and we cannot say they were not authorized to do so.

The motion for rehearing is overruled.
      <§=jFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      (g^For other cases see same topic and KEY-N.UMBEK, in all Key-Numbered Digests and indexes


source: Caselaw Access Project

author: DAVIDSON, J.

license: Public Domain

text:
    WILSON v. STATE.
    (No. 4111.)
    (Court of Criminal Appeals of Texas.
    June 7, 1916.
    On Motion for Rehearing, June 23, 1916.)
    3. Homicide &wkey;>250 — Evidence—Sueeicien-cy — Muedeb.
    Evidence held to sustain a conviction for murder.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. §§ 515-517; Dec. Dig. &wkey;250.]
    2. Homicide &wkey;>300(2) — Insteuction—Sele-Deeense.
    An instruction that accused was justified in killing deceased if he asked for a knife and said he would kill accused, or made either statement, is not error, since the coupling of the statements is cured by the alternative clause.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. § 616; Dec. Dig. &wkey;300(2).]
    Appeal from District Court, Uvalde County; R. H. Burney, Judge.
    Kid Wilson was convicted of murder, and he appeals. Affirmed.
    L. Old and Paul R. Ellis, both of Uvalde, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted, of murder and given 5 years in the penitentiary.

There are no bills of exception in the record except objections to the court’s charge. The first exception to the charge is, the court was in error in submitting the issue of murder. We are inclined to believe, under the evidence, the court did not in this matter commit error. A statement, briefly, of some of the facts, will show that appellant was a boy 17 or 18 years of age, and deceased a man about 30. The difference in weight was in favor of the deceased by about 40 pounds. Deceased and his wife were not living together. The testimony indicates that it is probable that the defendant may have been a contributing cause of their separation. On the night of the trouble Williams and his wife and the wife of deceased were in company on the street walking. Defendant met them, stopped deceased’s wife and engaged her in conversation. Just prior to meeting the deceased’s wife appellant borrowed a knife from one of the state’s witnesses, who testified in this connection:

“As we come down the street the defendant asked me to lend him my knife, and I handed it to him right in front of Mr. Pilgreen’s house. At that time he and I and Rastus, who was Andrew Gordon, were walking down the street, and after I had let him have the knife, Andrew Gordon and I stopped because I had broken my suspenders and wanted to fix them. When we stopped defendant, Kid Wilson, walked on. It was after dark, and I could not see him all the way, but we went right behind him. The next time I saw him was when we overtook him; he was standing on the sidewalk talking to Agnes Davis, and I walked by them while they were standing there talking, and right after I passed them I met Henry Davis, and I walked on by a little way, and turned around and watched them, as I expected trouble. I was in sight of them at the time, and Kid Wilson was standing there talking _ to Henry Davis’ wife, and I saw Henry Davis go straight down the sidewalk and go straight towards them, and when he got to where they were they went together and began fighting, and Mrs. Agnes Davis spoke to them, and said, ‘You all quit,’ and repeated it two or three times. While they were fighting Richard Wilson, who was a brother to Kid, came up to them. He was back down the street behind them with Nettie Grant, and he came up there, and when he got there I saw Richard Wilson push them apart, and then they went back together, and at that time Mrs. Davis had hold of Henry, at least it looked that way to me. About the time that Richard Wilson got there Sol Williams came up, and then immediately after that the third fight took place; that is, they went together the third time, and immediately after they had gone together the third time I heard Henry Davis say, ‘Oh, Dordy! I am cut all to pieces!’, and about that time I ran off.”

The knife is described, to be:

“A large bone-handled knife, with a big blade about 3 inches long, which length of the blade was admitted to be correct by the attorney representing the defendant, and the attorney representing the state.”

' It is also shown by Williams that when he and his wife and deceased’s wife, Agnes Davis, met appellant he asked Agnes Davis to stop and talk to him. While talking deceased came up and a fight ensued. It might be further added that the previous witness testified:

“Yes; this is the knife I loaned defendant on the street about 150 yards from where the fight took place. It is my knife, and at the time that I loaned it to him he did not say what he wanted with it( and there was nothing said about it; he just said, ‘Howard, lend me your knife,’ and I handed it to him, open. At the time I loaned this knife to Kid Wilson he carried it off in his hand, and it was open at the time I gave it to him,. and I never saw him close it up, or put it in his pocket. I never saw any knife or arm at any time on Henry Davis during the fight.”

The defendant’s theory of the case was that he was talking with the wife of the deceased at the time he came up; that deceased rushed at him, struck him with his fist, and broke his glasses, injuring his eye, and knocking him down. This was the beginning of the fight. He also testified to some expression of the deceased who called on his wife for a knife, stating that he expected to “kill the damn black son of a bitch,” referring to defendant.

We are of opinion that under this state of facts the court was not in error in submitting the issue of murder to the jury. We think the facts justified the court to so charge.

There is an exception to the charge, which should be noticed. It is what is styled in the exception as subdivision or paragraph No. 17 of the court’s charge, wherein he applies the law of self-defense to the facts. Numerous cases are cited by appellant to sustain his criticism of the charge. After giving paragraphs Nos. 15 and 16, the usual stereotyped definition of self-defense, the court gave what is styled paragraph No. 17, as follows:

“You are further instructed on the law of self-defense as applied to the facts of this case, that if you find from the evidence that the defendant did on or about the time alleged, and with a knife, cut and stab, and thereby kill the said Henry Davis, but you further find that at the time, or just prior to the time that he did so, the said Henry Davis had made an assault upon tlio defendant and knocked him down, and that thereafterwards in the pursuance of the difficulty between them, if any, the deceased, Henry Davis, called to his wife to give him his knife, and remarked at the same time that ‘I will kill the black son of a bitch,’ or if he made either of said statements, and thereupon approached the defendant, or made an assault upon him in the nighttime, and that, as viewed from the standpoint of the defendant at the time, he believed that he was in danger of serious bodily injury or death at the hands of the said Henry Davis, from such attack, or threatened attack, if any, and that while so believing, he pulled his knife and cut and stabbed the said Henry Davis and thereby killed him, then in case you so find the facts to be, or if there is a reasonable doubt in your mind that such were the facts, you will acquit the defendant,” etc.

Appellant’s proposition is that the coupling of conditions and statements as was done in the first portion of this charge was error. Had the charge stopped at that point

It is also insisted that the evidence is not sufficient to justify the verdict of murder, and that no higher offense than manslaughter is in the case by the testimony. We have stated enough of the testimony, we think, with reference to the charge submitting the issue of murder, to show the jury was justified in finding against appellant’s contention on that proposition.

the ease should be reversed, hut after stating those he then instructed the jury that If deceased made either of said statements and approached the defendant or made an assault upon him in the nighttime, they should give him the benefit of the doubt and acquit him. Several cases are cited by appellant to sustain his criticism of the charge in regard to coupling of conditions upon which the jury should base self-defense. Among those is Lara v. State, 48 Tes. Cr. R. 568, 89 S. W. 840. An esamination of the Lara Case discloses the conditions coupled were not alternative or in the disjunctive of those conditions. In the instant case the court, after joining these together and informing the jury if these matters occurred, defendant would be entitled to an acquittal, then to guard against any supposed error, and state the law favorable to defendant, he instructed them if they believed either statement or condition,' that appellant would be entitled to an acquittal, or if they had a reasonable doubt thereof they should acquit. We are of opinion that this charge, while inartistic, gave the benefit to the defendant of the law of self-defense from the standpoint that if either one of these statements or conditions existed, or there was a reasonable doubt about it, he should be acquitted.

We are of opinion there is no such error in the record as would require a reversal of the judgment. It is therefore affirmed.

On Motion for Rehearing.

On a former day of the term the judgment herein was affirmed. Appellant in his motion for rehearing attacks the following expression in the original opinion:

“Deceased and his wife were not living together. The testimony indicates that it is probable that the defendant may have been a contributing cause of their separation.”

The motion contends that this statement is not supported by the record. The writer was responsible for the expression in the original opinion, and in the light of the criticism has reviewed the testimony to ascertain if an injustice has been done appellant by reason of the statement.

The state’s case, through the witness Williams, is to the effect that he and his wife and the wife of deceased,'Agnes Davis, were walking along the street together and met appellant, who stopped Agnes Davis and stated to her he wanted to see her a moment. Witness says he and his wife walked on down the street and m.et deceased; that he and his wife stopped and turned around and watched deceased go down the street.

“Immediately after that I heard some one say something, but could not tell what it was that was said and who said it, and then I heard some blows passed, and then I started back down there, and left my wife standing on the sidewalk. When I got to whore they were they were not fighting, but just as I got there they went together again, and I heard Agnes Davis holler for some one to come there; that there was a fight.”

Just as they were pushed apart by Richard Wilson, brother of defendant, appellant reached for something in his pocket and rushed up to deceased “and made two swipes with his right hand on the left side of Henry Davis, the dead man. He just ran at Henry Davis and struck him, and then the defendant and Richard Wilson, his brother, ran.” This witness further says:

“Yes; before that time Kid Wilson had told me that he liked Mrs. Agnes Davis, the wife of the deceased, and liked her company because she was so jolly and pleasant.”

This witness further testified he had not heard of any previous trouble between deceased and defendant. These witnesses seemed to have been impressed with the idea that when deceased approached where appellant and the wife of deceased were engaged in conversation that something was going to happen. The witness further testified:

“I had never seen Kid Wilson at Agnes Davis’ house since she and her husband had separated; he used to go there while they lived together, but I have never seen him there since they separated.”

The testimony further shows from another witness:

“The next time I saw him was when we overtook him [appellant] and he was standing on the sidewalk talking to Agnes Davis, and I walked by them while they were standing there talking, and right after I passed them I met Henry Davis, and I walked on by a little way and turned around and watched them, as I expected trouble. I was in sight of them at the time, and Kid Wilson was standing there talking to Henry Davis’ wife, and I saw Henry Davis go straight down the sidewalk, and go straight towards them, and when he got to where they were they went together and began fighting.”

The witness further testified:

“I heard Henry Davis say, ‘Oh, Lordy! I am cut all to pieces!’ and about that time I ran off. At the time that I loaned this knife to Kid Wilson he carried it in his hand, and it was open at the time I gave it to him, and 1 never saw him close it up, or put it in his pocket. I never saw any knife or arm at any time on Henry Davis during the fight.”

The defendant himself testified, referring to deceased:

“I had never had any trouble before. I had been to his house some, while he and his wife lived together, but was never there except while he was there, and after they separated I never went back any more.”

The defendant denied being the cause of the separation. Other testimony of a kindred nature might be added to the above. If this does not justify the statement in the original opinion, the writer is still of the opinion that it would be rather difficult to understand ■ what this testimony means. That they were separated is not contested. Every witness who testifies in regard to the matter shows that deceased and his wife were separated. Defendant said there had never been any trouble before this occasion, yet he stopped the wife of deceased on the street, having prepared himself with a large knife beforehand, and deceased evidently anticipating something, approached defendant and his (deceased’s) wife, rapidly, and immediately upon reaching them defendant says deceased knocked him down and broke his glasses, then rushed on him again, and he (appellant) stuck his knife in him. We are still of opinion that the statement criticized by counsel found in the original opinion might be intensified and yet be within legitimate deduction from the facts. It is not my purpose to take up the facts and argue and discuss that question further. That every witness who testified in regard to the matter seemed to have anticipated there would be trouble at the time is not to be questioned by.this record, and the fact that appellant was talking to deceased’s wife, having prepared himself with a large open knife loaned to him by a witness who testifies and whose evidence is quoted in the original opinion, is also not debatable, there having been no other trouble between the parties and no occasion for it, as shown by the testimony of the defendant, and it was before the jury for their consideration. The deduction or conclusion is fully fair that the wife of deceased and deceased’s separation from her entered into this case.

I do not care to discuss the court’s charge as set forth in the original opinion. The cases relied upon by appellant (Lara v. State, 48 Tex. Cr. R. 508, 89 S. W. 840, Dodson v. State, 45 Tex. Cr. R. 574, 78 S. W. 514, and McMillan v. State, 73 Tex. Cr. R. 343, 165 S. W. 576) are not in point. Had the court’s charge terminated with coupling the conditions as found in the charge and gone no further, those cases would have been in point and required a reversal of this judgment. But the court, after giving these conditions in his charge on self-defense, gave the converse of it favorable to the defendant, and instructed the jury that if either of these statements or conditions occurred and deceased made an attack which brought actual or apparent danger to defendant, he had a right to kill. It occurs to us this was favorable to defendant so far as that phase of the charge is concerned. The court gave a full charge on both actual and apparent danger. Having given a charge that would have been reversible by coupling all the conditions, the court then instructed the jury that if either statement was made or any condition occurred followed by the attack, real or apparent, on the part of deceased, the defendant should be acquitted. It presents the opposite side or the reverse proposition favorably we think to the defendant. The first part of the charge should not have been given, but, having given it, the court then instructed the jury favorably to defendant’s side of the case. But in any event, the jury was instructed that if either of these matters occurred or any other statement was made by deceased, appellant was entitled to an acquittal, provided it presented to him either actual or apparent danger.

The motion for rehearing, therefore, will be overruled.
      ig^»For other cases see same topic and KEY-NUMB13R in all Key-Numbered Digests and Indexes


author: PRENDERGAST, .P. J.

text:
    CUILLA v. STATE.
    (No. 4073.)
    (Court of Criminal Appeals of Texas.
    May 31, 1916.
    Rehearing Denied June 21, 1916.)
    1. Receiving Stolen Goods <&wkey;l— Statute.
    Pen. Code 1911, art. 1349, forbids either the receiving or concealing of stolen personal property.
    [Ed. Note. — Eor other cases, see Receiving Stolen Goods, Cent. Dig. §§ 1-3; Dec. Dig. <&wkey;l.]
    2. Receiving Stolen Goods <&wkey;7(6) — SUffi-cienct of Accusation — Consteuction.
    An indictment, alleging that accused received and concealed, certain personal property will warrant a conviction for either receiving or concealing.
    [Ed. Note. — Eor other cases, see Receiving Stolen Goods, Cent. Dig. § 14; Dec. Dig. &wkey;o 7(6).]
    3. Receiving Stolen Goods <&wkey;8(3) — Evidence — Sufficiency.
    Evidence held to sustain an attorney’s conviction for receiving and concealing a revolver stolen by his client.
    [Ed. Note. — Eor other cases, see Receiving Stolen Goods, Cent. Dig. §§ 16, 17; Dec. Dig. <&wkey;8(3).]
    4. Criminal Law <&wkey;1166%(12) — Trial—Conduct of Trial — Conduct of Judge — Examination of Witnesses.
    It was not prejudicial error for the trial court to ask accused if he intended to- testify that it was his policy as an attorney to withhold from the authorities information as to stolen property in his possession.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3125; Dec. Dig. <&wkey;>1166% (12).]
    Appeal from Harris County Court, at Law; Murray B. Jones, Judge. ,
    Jack Cuilla was convicted of receiving and concealing stolen property, and appeals.
    Affirmed.
    K. C. Barkley and Cooper & Merrill, all of Houston, for appellant. John H. Orooker, Cr. Dist. Atty., E. T. Branch, Frank Willi-ford, Jr., and L. M. Williamson, all of Houston, and .C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, .P. J.

Appellant was convicted of receiving and concealing stolen property worth $15, and his punishment assessed at a fine of $100 and six months in •jail. Tlie statute is: If any person shall receive or conceal property which has been stolen, knowing it to have been so acquired, he shall be punished the same as if he had stolen the property. P. 0. art. 1349.

It is not necessary for a person to be guilty under this statute that he shall both receive and conceal, but the offense is if he shall do either — receive it or conceal it — knowing at the time that it was stolen. This statute is clear as to this, and has always been held by this court as stated, and it has always been held that it is not necessary to charge nor prove the accused with having received or concealed the property with intent to defraud any particular person.

“If the receiver of stolen property received it for the purpose of aiding the thief, or for concealing it, without expecting to receive any reward thereby, he is equally guilty as if he had bought it from the thief, with a knowledge that it was stolen with the intent to defraud the owner.” Nourse v. State, 2 Tex. App. 314.

In the same case it is held:

“When the receiver knows that the goods have been stolen by the thief, then, if after the offense of theft is complete he receives or conceals the stolen property, to aid the thief in escaping detection, or to assist Mm in disposing of it, the offense complete.”

See, also, 2 Bishop’s New Crim. Law, § 1138; Arcia v. State, 26 Tex. App. 205, 9 S. W. 685; State v. Rushing, 69 N. C. 29, 12 Am. Rep. 641; Com. v. Bean, 117 Mass. 141.'

The indictment herein alleged, that appellant did receive and, conceal. Under such allegation the accused can be convicted for either receiving or concealing. Branch’s Crim. Law, § 907.

“The word ‘conceal’ is not to be given the literal construction of hiding, but the handling of property in a manner that would throw the owners off their guard in their search and investigation for the same.”' Polk v. State, 60 Tex. Cr. B. 150, 131 S. W. 580; Davis v. State, 61 Tex. Cr. R. 611, 136 S. W. 45.
“Property can be concealed by carrying it off.” Moseley v. State, 36 Tex. Cr. R. 578, 37 S. W. 736, 38 S. W. 197, and the Polk and Davis Cases, supra.

Appellant contends that the evidence is insufficient to sustain the conviction. We have carefully read and studied the testimony. In our opinion, it is amply sufficient to sustain a conviction for both receiving and concealing the stolen property. The great preponderance of the testimony clearly establishes both a fraudulent receiving and a concealing of the stolen property. Most of the facts were established by both positive and circumstantial testimony without contradiction. It is true, there was some conflict in the testimony on some points, but, even where there was conflict, the jury were clearly authorized to believe the incriminating testimony which they evidently did.

We will not recite the testimony in detail, but we will give the substance of what it established and what the jury were clearly authorized to believe and find therefrom:

Will Curtis burglarized the store of A. Tomasino, and at the time stole therefrom a lot of dry goods in piece bolts and a Smith & Wesson 38 caliber pistol. He at once took tins property to the house of his “kept woman,” EtLnora Pero. She undertook to conceal the property, and did conceal it about her premises, hiding said pistol and another Colt pistol also at a different place from the other stolen property. About December 5th the officers, in hunting for this and other stolen property, searched several houses therefor in her immediate neighborhood. She became alarmed, fearing she might get in trouble about it. On the morning of December 5th, which was Sunday, the officers arrested Curtis and placed him in jail. She telephoned to appellant and his partner, asking them to come to her house. His partner first went and had an interview with the woman. A little later appellant himself went to her house and interviewed her. She told both of them that said goods and said Smith & Wesson pistol had been stolen by Curtis, and that she had concluded to burn them, fearing that, if the officers found her in possession, she would get in trouble. She employed appellant and his partner to represent Curtis. They had her then to put all of those stolen goods, including the pistols, in two packages, and that they would take them. Later that evening they both went to her house, got all of said stolen goods and pistols, and took them to their office.

About the same time of the burglary of Tomasino’s house Curtis burglarized another store and stole some dry! goods therefrom belonging to the Schaeffers. Elnora Pero told them about this burglary and theft also. They procured from her the address of Curtis’ wife and went to see her, and told her they were employed to represent Curtis, and that they had been informed that there were concealed about her premises some of the Schaeffer stolen goods. They induced her (Curtis’ wife) to turn over to them those stolen goods also, and they carried them to their office. In their office they placed said pistols in the drawer of appellant’s desk, where they were concealed from observation. They placed both of the other sets of stolen dry goods in a closed trunk. The next morning the officers learned from Curtis’ wife that appellant had gotten from her some stolen dry goods. The officers first took the Schaeffers there-to see if they could identify any of those goods as theirs, not then having any knowledge that appellant had procured said stolen goods from, the Pero woman. Appellant at first declined to permit them to examine the goods, demanding that they should describe them so as to identify them before seeing them, but finally, after being insisted upon by the officer, permitted them to examine the goods. Upon this examination the Schaeffers identified some of the goods as those stolen from their store. Later the officers had Tomasino up to see if he could identify- any of those goods as his. Because those which, had been stolen from Tomasino were piece goods, and all marks had been taken off of them, Tomasino could not with certainty identify any of those goods as his stolen goods, and none of them at that time were identified as his goods. These parties esamined these goods more than once for the purpose of identifying them, if they could, but in the condition they were Tomasino could identify none of them as his at that time. The appellant at no time when the officers or these parties were attempting to identify these goods called their attention to the fact that at the same time they had gotten the goods from the Pero negro woman they also got from her as a part of the same stolen goods said pistols. They said nothing about it whatever to any of these parties.

On December 13th an examining trial of Curtis was held on the burglary charge against him. Appellant and his partner represented him, were present at the examining trial, and heard the testimony of all the witnesses. They heard the testimony of Tomasino, wherein he told about the burglary of his house and the stealing from him of said dry goods and said Smith & Wesson pistol. He accurately described the Smith & Wesson pistol so as to clearly identify it. Appellant at that time failed to disclose to Tomasino, the justice of the peace who held the examining trial, or any of the officers, the' fact that he had received that pistol from the Pero negro at the same time he received the other goods from her. On that examining trial Tomasino testified that he had examined the dry goods in the trunk in their office, but could not identify any of them as his property. On that same day, after the examining trial, appellant told Tomasino that he had a Colt pistol, but did not then or at any other time tell him that he had that Smith & Wesson pistol. Tomasino swore:

That he know the Colt pistol could not be Ms, because no Colt pistol had been stolon from him; that ho had been at appellant’s office several times, both before the examining trial of Curtis and several times afterwards, and appellant “never told me that he had in his possession any Smith & Wesson pistol, the kind I had lost. Cuilla had heard me testify as a witness at the examining trial, and heard me describe the gun which I now identify in court as the one that was stolen from me at the time Will Curtis burglarized my house. It’s a Smith & Wesson pistol.”

On this trial this pistol, having later been procured from Cuilla, .was thoroughly identified by Tomasino as the pistol stolen from him by Curtis, and appellant and his partner both conceded that that was one of the pistols they got from the Pero woman when they got it and the other stolen goods of Tomasino’s. A few days after said examining trial appellant met one of the officers who had been active in trying to have the goods identified and in the prosecution of Curtis, laughed, and asked him if he had found that pistol of Tomasino’s yet. The officer replied that he had not. He continued to smile and walked away. The Pero woman did not testify in the examining trial. After this incident, about December 23d, the officer learned from the Pero woman that at the time she turned over the other Tomasino stolen goods to appellant and Ms partner she also turned over to him a pistol. The officer, after learning this, repeatedly went to appellant’s office to see and get this pistol, but failed to find him in his office. Later he sent another officer to get that pistol, and upon that officer’s demand of appellant of the pistol he delivered it to that officer. The appellant and his partner both admitted in their testimony that the Smith & Wesson pistol that they then turned over to this officer, which was not until December 23d, or afterwards, was the same identical pistol that Tomasino had accurately described in his testimony on the examining trial as having been stolen from him at the time his other goods .were stolen.

Appellant’s partner, Mr. S. J. Schnitzel, testified that he and appellant attended the corporation court on December 6th in an upper story of the building in which were situated the headquarters of the duty detectives, and in coming down therefirom they were bound to pass, and did pass, by the detectives’ offices and saw them therein. He swore:

“The stolen goods had been in our office from 12 to 14 hours then. Cuilla and I both knew there had been a burglary committed, and the stuff had been turned over to us by the Pero woman with the information that the alleged burglar, Will Curtis, had brought them to her house, and we had information that this alleged burglar had been arrested, and we were representing him. Mr. Cuilla and I said nothing to the detectives about us having the alleged stolen property in our possession. We, as lawyers, realized the fact that we were employed in representing Will Curtis, and probably the woman, if anything turned up against her, and it would not have been good policy for us as lawyers, in coming from down in the corporation court, to tell the detectives anything we know about those goods, or where the goods could be found.”

Appellant' in his cross-examination swore that, when the Pero woman turned over said dry .goods to him and his partner, she told him that Curtis had turned over those goods and said Smith & Wesson pistol to her as stolen property; that he was present at the examining trial of Curtis and had heard Tomasino therein testify that his house had been burglarized and a 38 caliber Smith & Wesson pistol had then been stolen from him. He swore:

“I kept the gun in my office from the 5th day of December to the 23d day of December, and did not say anything about it, simply because nobody called for it nor identified it. I did not mention the fact that I had the pistol and I concealed it for the simple reason that nobody called for it.” That he did not tell Tomasino at any time that he had that pistol in his office nor that he had gotten that pistol from the Pero woman. “I would not have given it up till doomsday if the detectives had not come and asked for it. I represented Will Curtis in the district court, and advised him to plead guilty, which he did.”

He further testified, that Curtis pleaded guilty to burglarizing Tomasino’s store upon his advice, and that he also pleaded guilty to stealing said pistol from Tomasino.

Appellant on this trial further testified:

“I heard Mr. Tomasino testify that he had lost a pistol and like the one now shown me. I heard him testify to this at the examining trial of Will Curtis, which was held in the justice court on the 13th day of December. Yes; I remember him being interrogated about some goods that were stolen out of his store at the same time the pistol was stolen, but they were not able to identify the goods. I heard him testify that in that burglary he had lost a 38 caliber Smith & Wesson, and this examining trial was the examining trial of Will Curtis charged with this particular burglary of Toma-sino’s house. Elnora Pero had told me at the time she gave me the pistol that Will Curtis had left it at her house. I kept the gun in my office from the 5th day. of December to the 23d day of December, and did not say anything about it simply because nobody called for it or identified it. I did not mention the fact that I had the pistol, and I concealed it for the simple reason that nobody called for it.”

The partner of appellant testified:

“Cuilla and I both knew there had been a burglary committed, and the stuff had been turned over to us by the Pero woman with the information that the alleged burglar, Will Curtis, had brought them to her house, and we had information that this alleged burglar had been arrested, and we were representing him. Mr. Cuilla and I said nothing to the detectives about us having the alleged stolen property in our possession. We, as lawyers, realized the fact that we were employed in representing. Will Curtis, and probably the woman, if anything turned up against her, and it would not have been good policy for us as lawyers, in coming down in the corporation court, to tell the detectives anything we knew about these goods or where the goods could be found.”

We cannot understand how any one could seriously contend that the testimony in this case was insufficient to sustain the verdict. We cannot see how any honest juror therefrom could come to any other conclusion and find any other verdict than that of guilty against appellant. It clearly authorized the jury to find him guilty for fraudulently both receiving and concealing said stolen pistol with the full knowledge at the time that it was stolen when he both received and concealed it.

When appellant’s partner testified as last quoted above this occurred, which we quote from his bill as qualified by the trial judge:

“The court, wishing to understand the witness correctly, propounded this question to him: ‘Do you mean to tell this jury and court that it is your policy as a practicing lawyer to conceal from the officers your knowledge of the whereabouts of stolen property then in your possession?’ The witness did not answer the question, and the court, over objection of defendant, asked this question: ‘Do you say it would .not have been policy where lawyers are representing a man charged with theft and burglary that it is not policy to inform the detectives’ department where stolen goods can be found, if such stolen property was then in your possession?’ To which the witness replied: ‘You asked me if I thought it was policy to fail to give information to the detectives’ department as to the whereabouts of that goods at that time?’ The court then states: ‘No, sir; the question was as to the stolen goods, whether you considered it policy to refuse to give information to the detectives about stolen property if such property was then in your possession.’ To which question the witness answered: ‘I did not testify that I refused to give such information.’ ”

He made many objections to the court’s asking these questions and eliciting these answers. As thus qualified, this bill shows no reversible error. This court has held that it is perfectly proper for the court in order to understand a witness to reiterate a question, or have the witness explain his meaning. Elsworth v. State, 52 Tex. Cr. R. 1, 104 S. W. 903. The court by this, we think, made no such intimation to the jury as would call for a reversal. The fact that the trial judge himself interrogates a witness will not require reversal when there is no showing that probable injury was done the accused thereby. Harrell v. State, 39 Tex. Cr. R. 225, 45 S. W. 581; Strapp v. State, 65 Tex. Cr. R. 331, 144 S. W. 941; Mitchell v. State, 65 Tex. Cr. R. 545, 144 S. W. 1012; Wragg v. State, 65 Tex. Cr. R. 131, 145 S. W. 343.

The court committed no error in overruling appellant’s motion for a continuance because of the claimed absence, and inability of his attorney to be present to represent him on this trial. His attorney was' present and did represent him.

The only other bill appellant has is to the claimed exclusion of their attempt to have the negro woman Pero to prove up that she had signed a deed to them. The bill in no way discloses how this testimony on this point could have been material nor what her answer would have been. The best we can make of it is that it was an apparent attempt at most to impeach her on a wholly immaterial matter..

There is no reversible error shown in this record, and the judgment will be affirmed.
      «SnojFor other cases see same topic and'KEY-NUMBER in all Key-Numfcered Digests and Indexes


author: HARPER, J.

text:
    PIPPINS v. STATE.
    (No. 4094.)
    (Court of Criminal Appeals of Texas.
    May 31, 1916.
    Rehearing Denied June 21, 1916.)
    Husband and Wine &wkey;>302 — 'Wins Deseetion — Guilt.
    Where defendant left his wife and children with some ■ supplies merely because he did not like the manner in which his wife’s people treated him, he was guilty of willfully deserting them in destitute and necessitous circumstances, though his mother would have supplied the wife with necessaries.
    [Ed. Note. — Eor other cases, see Husband and Wife, Cent. Dig. § 1100; Dec. Dig. &wkey;302.]
    Appeal from Taylor County Court; E. M. Overshiner, Judge.
    Gunce Pippins was convicted of willfully deserting Ms wife and cMldren, and he appeals.
    Affirmed.
    Scarborough. & Davidson, of Abilene, for appellant. C. O. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted under article 640a, Vernon’s Ann. Pen. Code 1916, for willfully-deserting his wife and min- or children, they being in destitute and necessitous circumstances.

Appellant offers no testimony tending to show any justification for the desertion of his family. The desertion is shown beyond doubt, and his only excuse for deserting them is he did not “like the manner in which her people treated him.” He does not say Ms wife mistreated Mm in any way, nor state in what way her people had mistreated him. He contends that she had some supplies when he left, and his mother would have supplied her necessities. We do not think the law contemplates that a wife and children shall be left upon the charity of the mother of the man deserting Ms wife.

The evidence will sustain the verdict, and the judgment is affirmed.
      <S=»For other cases sea same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    Ex parte VILLAREAL.
    (No. 4112.)
    (Court of Criminal Appeals of Texas.
    May 31, 1916.
    Rehearing Denied June 21, 1916.)
    1. Habeas Corpus &wkey;3l09 — Commitment for Grand Jury.
    Where there is cause or probable cause for believing an offense has been .committed, the district court on habeas corpus may hold the party for an investigation by the grand jury.
    [Ect Note. — For other cases, see Habeas Corr pus, Cent. Dig. §§ 97, OS; Dec. Dig. ¡@=>109.]’
    2. Habeas Corpus <&wkey;85(l) — Burden of Proof.
    The burden of proof, in habeas corpus trials before a district judge for a reduction of bail and a discharge from custody, is upon the state, which must show probable cause for holding the arrested party.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§ 77, 78; Dec. Dig. <&wkey;85(l).]
    3. Larceny &wkey;>22 — Bringing Stolen Property'into State from Foreign Country.
    One who commits robbery, or steals, in Mexico, and brings the proceeds into Texas, is amenable to the laws of Texas, under the statute for bringing the stolen property or property acquired by robbery into the state.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. § 49; Dec. Dig. &wkey;>22.]
    4. Criminal Law <&wkey;225 — Preliminary Examination-Waiver of Introduction of Evidence.
    Where defendant, charged by complaint on information and belief with robbery and theft and bringing the stolen property into Texas, waived examination and gave bond, he could not complain, in habeas corpus proceedings, of being held under reasonable bond for appearance before the grand jury, having waived the introduction of evidence by the state.
    {Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 468-471; Dec. Dig. &wkey;>225.]
    Appeal from District Court,- Val Vorde County; Joseph Jones. Judge.
    Application for habeas corpus by R. R. Villareal. There was judgment holding defendant for Ms appearance before the grand jury, and he appeals.
    Affirmed.
    David E. Hume, of Eagle Pass, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was arrested on a complaint charging Mm with robbery and theft and bringing the stolen or acquired property into Texas and into the county of Terrell. The complaint is on information and belief. Upon Ms arrest he wias carried before the examining court, and there waived examination. The court fixed his bond at 8500. Later he applied to the district judge, for habeas corpus on two propositions: First, a reduction of bail, and second, for Ms discharge from custody. There was no evidence introduced on the trial as to the facts attending the robbery or theft. So the case stands upon the papers.

There had been no indictment returned prior to the hearing of the writ of habeas corpus. The rule, generally stated, with reference to matters involved is that where there is cause or probable cause for believing an offense has been committed the court may hold the party for an investigation by the grand jury. The burden of proof in habeas corpus trials of this character is upon the state, and it must show probable cause for holding the arrested party. Where there is no evidence introduced, the court, of course, must act upon the case as presented. If appellant committed the robbery or the theft in Mexico and brought the proceeds acquired by means of the robbery or the theft into Texas, he would be amenable to the laws of Texas under our statute, which prohibits bringing stolen property or property acquired by robbery into the state. Appellant, having waived an examimng trial and given bond, could not complain of what occurred in the examining court. He could have demanded a trial on the facts if he so desired. Having waived an examination and given bond, he could not complain of being held under reasonable bond. Had he required the introduction of evidence, the state would have had to produce it, but this matter he waived, it being within Ms power and right to do so. We are of opinion that, under the record as we have it, the court was not in error in holding appellant for his appearance before the grand jury. Evidence was not introduced in either trial that he was unable to give bond or the amount of bail which he could give. He stood upon the record as made. We are of opinion that the case as presented justified the court in holding appellant for his appearance before the grand jury. If he gave bond he would be discharged; failing to give it, he would he kept in custody. The evidence may or may not have been sufficient to hold him, but it is not before the court, and we think the record raises a sufficient probable ground to hold him for his appearance before the grand jury.

The judgment, therefore, will be affirmed.
      <©5»For other cases see same topic and KEY-NUMBER in all-Key-Numbered Digests and Indexes


author: PRENDERGAST, P. J.

text:
    GUILD v. STATE.
    (No. 4089.)
    (Court of Criminal Appeals of Texas.
    June 7, 1916.
    Rehearing Denied June 23, 1916.)
    1. Criminal Law <&wkey;>l’092(16), 1099(13) — Bills on Exceptions—Time por Filing— Statute.
    In a prosecution for violation of the pure feed law, a misdemeanor, where the bills of exceptions and statement of facts were filed in the lower court after the adjournment of the term at which a conviction was had, without an order authorizing the filing, the court will not review them on appeal.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig-. §§ 2847, 2876; Dec. Dig. <&wkey;> 1092(16), 1099(13).]
    2. Indictment and Information <&wkey;110(2)— Information—Stjfficien cy.
    Under Acts 29th Leg. c. 108, as amended by Acts 30th Leg. c. 131, relating to pure feed-stuff and making a violation of its provisions a misdemeanor; and using terms “concentrated «ommercial feeding stuff” and “concentrated feed stuff” interchangeably, not attempting to make any difference between them so far as the offense is concerned, an information naming the cotton seed cake described therein as “concentrated feeding stuff,” omitting the word •'commercial,” was sufficient.
    [Ed. Note.—For other cases, see Indictment and Information, Cent. Dig. §§ 290-294; Dec. Dig. &wkey;110(2).]
    3. Adulteration <&wkey;2—Statutes—Validity —Constitutionality—Public Policy.
    Acts 29th Leg. c. 108, as amended by Acts 30th Leg. c. 131, relating to pure feeding stuffs and prescribing as a punishment for its violation a fine and imprisonment, is not void as against public policy because it makes the agent of a principal guilty of an offense instead of making the principal so only, since the person who actually commits a crime will be punished therefor whether he is acting on his own initiative or is an agent for a principal, and it is with rare exceptions that a corporation is punished for violation of a criminal statute.
    [Ed. Note.—For other cases, see Adulteration, Cent. Dig. §§ 1, 2; Dec. Dig. <&wkey;2.]
    Appeal from Hemphill County Court; J. L. Jennings, Judge.
    Frank Guild was convicted of violating the pure feedstuff law, and he appeals.
    Affirmed.
    Hoover & Dial, of Canadian, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of violating our pure feedstuff law, and the lowest punishment assessed.

The record shows that what purports to be bills of exceptions and a statement of facts were filed in the lower court some time after the adjournment of the term at which the conviction occurred without any order authorizing this to be done. The statute and the uniform decisions of this court are clearly to the effect that under such circumstances in misdemeanor eases 'this court can consider none of them. Hence the Assistant- Attorney General’s motion to strike them out must be, and is, sustained. Some of these cases are collated in 2 Vern. Crim. Stats, p. 827.

Appellant’s contention in his motion in arrest of judgment that the information is insufficient because he named the cotton seed cake described therein as “concentrated commercial feeding stuff,” when the statute makes it “concentrated feeding stuff,” omitting the word “commercial,” is untenable. The original act of 1905 (page 207), with certain sections of it amended by the Act of 1907 (page 243), uses the terms “concentrated commercial feeding stuffs” and “concentrated feed stuffs” rather interchangeably. At least under the terms of this statute, there is no difference between the two. The statute does not attempt to make any difference between them, so far as the offense is concerned, but, as stated, treats them as if they were the same.

Neither is there anything in appellant’s contention that said law is unreasonable, against public policy, and void for the reason that it makes the agent of the principal guilty of an offense instead of making the principal so only. It is the general principle of law in this state that the person who actually commits a crime shall be punished therefor, whether he be acting on his own initiative or is an agent for a principal, and especially is this.true in misdemeanor cases, as this case is. It is with rare exceptions our law provides for the punishment of a corporation for the violation of a criminal statute. In some instances it does so by prescribing a penalty to be recovered by suit in contradistinction from a fine or imprisonment therefor. In this case appellant’s principal was a corporation as he claimed. The statute prescribes as a punishment for its violation a fine, or imprisonment in the county jail, or both. If a corporation was insolvent, there would he no way whatever of enforcing a conviction of it. It could not be imprisoned either as a part of the punishment or for failure to pay the money fine. Hence, in order to enforce the law, it is essential that the agent who commits the crime shall be punished therefor instead of his principal, a corporation.

The judgment is affirmed.


author: TALBOT, J.

text:
    SOVEREIGN CAMP OF WOODMEN OF THE WORLD v. ROBINSON.

    (No. 7544.)
    (Court of Civil Appeals of Texas. Dallas.
    May 13, 1916.
    Rehearing Denied June 17, 1916.)
    1. Constitutional Law <&wkey;175 — Vested Rights—Rules of Evidence.
    No person has a vested right- in the rules of evidence, which may be changed by the state, if its action relates only to evidence, without violating the contract clause of the Constitution.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 519, 520; Dec. Dig. <&wkey;> 175.]
    2. Insurance <&wkey;693 — Fraternal Insurance — Disappearance Clause — Validity.
    A subsequently adopted by-law of a fraternal society, as to a certificate holder, who, in his application, had agreed that all existing or subsequent by-laws should form a part of his certificate, providing that a member’s absence or disappearance from his last place of residence should not be any evidence of his death, nor create any right to recover on any certificate, without proof of his actual death, until the full term of his life expectancy at his entry had expired, and that it should be construed as a waiver of any statute or rule of the common law to the contrary, contravened Rev. St. 1911, art. 5707, providing that absence for seven years shall raise a presumption of death and was invalid.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1833; Dec. Dig. <§=>693.]
    3. Contracts <§=>127(1) — Fraternal Beneficiary Insurance — Disappearance Clause —Rules of Evidence — Ousting Court of Jurisdiction.
    Such by-law, in effect stipulating that certain evidence only should be admissible in ease of litigation subsequently arising under the contract, could not be allowed to control the action of the court in the admission of or the effect to be given the evidence, as courts will not permit the course of justice to be affected by stipulations so as to defeat the ends to be subserved by such litigation, or allow the parties to a contract to agree to oust the court’s jurisdiction over such contracts.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 608-610, 613-616; Dec. Dig. &wkey; 127(1).]
    4. Insurance <&wkey;693 — Fraternal Beneficiary Insurance — By-Laws—Reasonableness.
    A by-law of a fraternal beneficiai’y association, to be valid, must be reasonable.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1833; Dec. Dig. <§=>693.]
    5. Death <&wkey;2(l) — Presumption from Absence.
    The law or rule of evidence embodied in Rev. St. 1911, art. 5707, that the presumption of the duration of life ceases at the end of seven years’ unexplained absence, does not limit the presumption of death to an absence for the space of seven years, but, on proper evidence, death before the expiration of such time may be inferred.
    [Ed. Note. — For other cases, see Death, Cent. Dig. §§ 1, 2; Dec. Dig. <&wkey;2(l).]
    6. Death <&wkey;2(l) — Presumption from Absence-Evidence.
    Evidence of character, habits, domestic relations, etc., making the abandonment of home and family improbable, and showing the want of all the motives which can be supposed to influence men to such acts, may be sufficient to raise the presumption of death, or from which, the death of one absent and unheard of may be inferred without regard to the duration of such absence, even though he was not shown to have been exposed to any peril likely to shorten his life.
    [Ed. Note. — For other cases, see Death, Cent. Dig. §§ 1, 2; Dec. Dig. &wkey;2(l).] |
    7. Death <&wkey;2(2) — Presumption from Absence — Time.
    Where one has been absent and unheard of for seven years, the presumption arises that he is then dead, but not that he died at any particular time theretofore, and, if important to establish death at any pax-ticular time, it must be done by evidence. 1
    [Ed. Note. — For ot-Ker cases, see Death, Cent. Dig. § 3; Dec. Dig. &wkey;2(2).]
    8. Death <&wkey;4 — Absence — Sufficiency of Evidence.
    In a widow’s action upon a certificate of insurance issued upon life of her husband, evidence held to sustain the finding that the insured was dead, and that he died at or about the time of his disappearance from home after which time nothing was heard or known of him.
    [Ed. Note. — For other cases, see Death, Cfent. Dig. §§ 5, 6; Dee. Dig. <&wkey;4.]
    Appeal from District Court, Dallas County ; Murphy W. Townsend, Special Judge.
    Action by Mrs. Carrie Robinson against the Sovereign Camp of the Woodmen of the World. Judgment for plaintiff, and defendant appeals. Affirmed.
    Arthur H. Burnett, of Omaha, Neb., and Flippen, Gresham & Freeman, of Dallas, for appellant. Henry P. Edwards and Cockrell, Gray & McBride, all of Dallas, for appellee.

      writ of error pending in Supreme Court.

   TALBOT, J.

The appellee, as the surviving wife of James W. Robinson, sued the appellant on a certificate of insurance issued upon the life of the said James W. Robinson for the sum of $3,000 to be paid, under the terms of the certificate, upon the death of the said Robinson. The regular judge being disqualified, the case was tried in the district court of Dallas county, without a jury, before the Honorable Murphy W. Townsend, special judge duly selected by agreement of counsel, and the trial resulted in a judgment in favor of the appellee. The trial court, at the request of the appellant, filed conclusions of fact and law. The court’s conclusions of fact, are substantially as follows: Appellee’s husband, James W. Robinson, became a member of Post Mountain Camp No. 56, of the appellant, located at Burnet, Tex., May 28, 1906, and the appellant then insured the life of the said Robinson by its written policy of insurance or benefit certificate in favor of his wife, Mrs. Carrie Robinson, in the sum of $3,000. About the year 1910, the said James W. Robinson transferred his membership to a local camp of the appellant at Grand Prairie, in Dallas county, Tex., where the same thereafter remained. The said James W. Robinson and the appellee, his wife, on 'September 14, 1914, and for about two years prior thereto, resided in Oak Cliff, 'Dallas, Tex., with their two small children. On or about said date the said James W. Robinson disappeared from Dallas and from his home therein, since which time he has never been seen, heard from, or heard of by any known person, either in Dallas or at any other place where he had at any time theretofore lived, notwithstanding diligent search and inquiry for him have been made, kept up, and continued since his said disappearance, which inquiry has been made by the appellee, by her many friends, by relatives of the said James W. Robinson, by the sheriff of Dallas county, the chief of detectives of said county, and many other persons. James W. Robinson at the time of his disappearance was 47 years old, a man of exemplary habits, contented and respected, residing with his wife and family at their home in Oak Cliff in the city of Dallas, Tex., his family consisting of the appellee, his wife, and of two children, William, a boy then six years old, and Edmond, a boy then four years old. The said James W. Robinson was a most devoted husband and father and exceedingly happy in his domestic and family relations, sober in his habits, contented and respected among his friends and in the community, and there was no incentive for his disappearing from his home and family and absenting himself therefrom. The said James W. Robinson is dead. He. died on or about the time of his said disappearance and prior to June 1, 1913,“ and while said insurance policy was in full force. The appellant is a fraternal beneficiary association, as defined by title 71, c. 7, of the Revised Statutes of Texas of 1911, and chapter 113 of the Regular Session Daws of 1913, and is doing business in all states of the Union, including Texas, and has a permit to do business in Texas. The benefit certificate was issued to the said James W. Robinson upon his written application to the appellant therefor, which application became and is a part of said insurance contract. In said application Robinson agreed that:

“All the provisions of the constitution and laws of the order now in force or that may hereafter be adopted shall constitute the basis for and form a part of any beneficiary certificate that may be issued to me by the Sovereign Camp of the Woodmen of the World, whether printed or referred, to therein or not.”

He further consented and agreed in said application that if he failed to comply with the laws, rules, and usages of the order, then in force or thereafter adopted, his beneficiary certificate should become void and all rights of any person or persons thereunder should be forfeited. The said James W. Robinson was 41 years of age at the time he became a member of the appellant order, and, by the terms of the appellant’s said laws, was required to pay $3.75 monthly rate of assessment under said policy on the 1st day of each and every month. The payments under said policy .were all made continuously and regularly up to and including May, 1913, after which time no payments whatsoever were made under or upon said policy. Said payments were made by said James W. Robinson up to the time of his disappearance, and thereafter first for a time by the appellee and then said local camp at Grand Prairie. By the terms of said insurance contract, same became ipso facto null and void on and after June 1st for nonpayment ' of assessments provided the said James W. Robinson was then living. In May, 1907, the Sovereign Camp of the appellant, being its supreme legislative and governing body, enacted a by-law reading as follows:

“The absence or disappearance of a member from his last known place of residence for any length of time shall not be sufficient evidence of the death of such member, and no right shall accrue under his certificate of membership to a beneficiary or beneficiaries, nor shall any benefits be paid until proof has been made of the death of the member while in good standing.”

This by-law was continued in force and reenacted by the Sovereign Camp at its eighth biénnial session regularly convened in June, 1909, and the Sovereign Camp in June, 1911, at its ninth biennial session, amended the disappearance by-law, and as so amended it was re-enacted and adopted in words as follows:

“The absence or disappearance of the member herein named, whether admitted heretofore or hereafter, from his last known plaee of residence and unheard of shall not be regarded as any evidence of the death of such member nor give or create any right to recover any benefits on any certificate or certificates issued to such member, or on account of such membership, in the absence of proof of his actual death, aside from and unassisted by any presumption arising by reason of such absence or disappearance, until the full term of his life expectancy at his age of entry, according to the Carlyle table of life expectancy, has expired, and then only in case all assessments, dues, special assessments and all other sums now or hereafter required under the laws of the order be paid on behalf of such member within the time required until the expiration of the term of such life expectant cy, and the conditions of this certificate shall operate and be construed as a waiver of any statute of any state or country and of any rule of the common law of any state or any country to the contrary.”
In September, 1912, at the time of said Robinson’s disappearance, he being then 47 years of age, the term of his life expectancy at that time, according to said Oarlyle Table of Mortality, was 22.7 years. After September 14, 1912, and prior to the filing of this suit on June 4, 1914, the defendant was notified of the fact of said James W. Robinson having disappeared, and of the fact that plaintiff claimed that said James W. Robinson was dead, and that demand was made by plaintiff for the payment of said benefit certificate, which claim was refused by the defendant; it denying liability thereon. The benefit certificate on its face provided as follows:
“This certificate is issued and accepted subject to all of the conditions on the back hereof, and subject to all of the laws, rules and regulations of this fraternity now in force or that may hereafter be enacted, and shall be null and void if said Sovereign does not comply with all of said conditions and with all of the laws, rules and regulations of the Sovereign Camp of the Woodmen of the World, that are now in force or which may hereafter be enacted, and with the by-laws of the camp of which he is a member.”

James W. Robinson, on June 14, 1906, accepted the'certificate by signing a document, which was attached to appellant’s answer as ‘‘Exhibit B.” (It is unnecessary to copy this document.) The appellant denied that James W. Robinson was dead, and pleaded specially the by-laws above set out to the effect that the absence or disappearance of a member of appellant’s order, whether admitted before or after their passage, from his last known place of residence and unheard of, should not be regarded as any evidence of the death of such member, etc., until the full term of his life expectancy at his age of entry according to the Carlyle Table of Expectancy had expired.

. The trial court concluded as a matter of law that the contract of insurance between the appellant and James W. Robinson was not subject to the “disappearance by-law” pleaded by appellant, and the correctness of this conclusion is challenged in the appellant’s first assignment of error.

As has been observed, James W. Robinson was admitted to membership in appellant’s order upon his written application in which he agreed that all the provisions of the constitution and by-laws of the order then in force, or that might thereafter be adopted, should constitute the basis for and form a part of any beneficiary certificate issued to him, and that said certificate was accepted subject to all of the laws, rules, and regulations of the appellant then in force or that might thereafter be enacted, and should become null and void if he did not comply with such laws, rules, and regulations. These provisions of the contract sued on give rise to the first question presented and discussed by counsel, namely, whether or not the disappearance by-law, which was admittedly passed after Robinson became a member of the order, constituted such a material change in said contract as not to be binding on the said Robinson or his beneficiary. The contention of the appellee is that, whatever may be the rule in other jurisdictions, the stipulation that the insured will be bound by future by-laws passed by the appellant cannot, under the settled law of this state, affect the terms of the contract as it existed at the time it was made, and that such is the effect of the by-law in question. In support of this contention, appellee cites Supreme Lodge K. P. v. Mims, 167 S. W. 835, and Ericson v. Sup. Ruling, Frat. Mystic Circle, 105 Tex. 170, 146 S. W. 160. On the other hand, the appellant contends that, while it may be true that retroactive legislation cannot be invoked to divest vested rights of property or to impair the rights and obligations of contracts, yet the disappearance by-law under consideration, which was adopted by the appellant the year after James W. Robinson received his benefit, does not impair any vested contract right, but merely establishes a rule of evidence, and the contract for benefits or of insurance is subject thereto. In the cases of Mims and Ericson, supra, it was held that the provision in the policy by which the insured agreed to comply with future rules and bylaws adopted by the order had reference only to such regulations as related to the insured’s duties and conduct as a member and did not embrace an act that would produce a radical change in his rights; that the by-law invoked had the latter effect and was not binding. Those cases are probably not in point here. We regard it as a well-established general rule that no person has a vested right in rules of evidence, and that such rules may be changed by the state, if its action relates only to evidence, without violating the contract clause of the constitution. This is for the reason, as said by Mr. Cooley in his work on Constitutional Limitations (7th Ed.) 524, that:

“The rules of evidence pertain to the remedies which the state provides for its citizens, and generally in legal contemplation neither enter into and constitute any part of any contract nor can be regarded as being the essence of any right which a party may seek to enforce.”

But however well established this general rule may be, and no matter how often it may have been applied in adjudicated cases, still we think it is not applicablé and controlling in solving the question we are considering in the instant case. This is true, even if it be conceded that the law invoked by the appellant merely establishes a rule of evidence, because the by-law is unreasonable and contravenes article 5707 of our statute, which provides that:

“Any person absenting himself beyond sea or elsewhere for seven years successively shall be presumed to be dead, in any cause wherein his death may come in question, unless proof be made that he was, alive within that time.”

It has been held in this state and in other jurisdictions that a by-law of a fraternal order similar to- the one involved in this case is inapplicable to an action on the certificate based on the member’s death because he has not been heard from for seven years after his disappearance from his home, when such by-law renders ineffectual a statute providing that a person disappearing and unheard of for seven years shall be presumed to be dead. Supreme Ruling of Fraternal Mystic Circle v. Hoskins, 171 S. W. 812; Samberg v. Knights of the Modern Maccabees, 158 Mich. 568, 123 N. W. 25, 133 Am. St. Rep. 396. The fact that seven years had not elapsed from the time of the disappearance of the insured Robinson to the time of the institution of this suit or the cessation of the payment of dues should not, in our opinion, alter the case. The by-law under consideration is clearly opposed to the statute of this state referred to above in relation to the presumption arising from seven years’ absence without intelligence concerning the absent person and one the appellant could not lawfully make. It was therefore invalid, or without binding force, from the date of its enactment and could not be invoked in this case to render ineffective evidence that otherwise might be sufficient to establish the death of the insured.

Furthermore, the by-law could not be invoked by appellant for the purpose stated because it is unreasonable. Its enforcement would not only have the effect to render nugatory a salutary statute, but the further effect of “making it practically impossible to make proofs of death in cases within the occasional experiences of men.” Samberg v. Knights of the Modern Maccabees, supra. In that case the by-law was held to be unreasonable. The following quoted language from appellee’s brief aptly expresses our views upon the subject:

“In the light of existing authority, it may be said that a stipulation, in a contract that certain evidence only shall be admissible in case of litigation subsequently arising under . such contract, cannot be allowed to control the action of the court in the admission of, or in the effect to bo given to, evidence. Courts will not permit the course of justice, upon trials before them, to be stipulated and contracted in such manner as to defeat the ends to be subserved by such trials. The parties to the contract cannot agree to oust courts of jurisdiction over such contracts.” Utter v. Travelers’ Ins. Co., 65 Mich. 545, 32 N. W. 812, 8 Am. St. Rep. 913; Travelers’ Ins. Co. v. McConkey, 127 U. S. 661, 8 Sup. Ct. 1360, 32 L. Ed. 308.

Such would be, practically, the effect of the enforcement of the by-law pleaded in this ease by the appellant as a part of the contract sued on. In Wineland v. Knights of Maccabees of the World, 148 Mich. 608, 112 N. W. 696, it is held, in effect, that a by-law to be valid must be reasonable.

The appellant further contends that the appellee failed to prove her case, for the evidence was wholly insufficient to establish the fact of Robinson’s death, and that death occurred prior to June 1, 1913, when he was suspended from the order for nonpayment of dues and assessments and his beneficiary certificate was forfeited. We do not concur in appellant’s view of the evidence as expressed in this contention. The law or rule of evidence that, when a person has not been heard of for a number of years, the presumption of duration of life ceases at the end of seven years, does not limit “the presumption of death to an absence of the person whose existence in life is in question without tidings from him for the space of seven years”; nor does the modification of the rule as laid down in some cases, to the effect that such absence for a shorter period, if the person is shown to have been in peril, will raise a presumption of death, exclude evidence of other facts and circumstances which tend.to establish the probability of his death.

“Evidence of character, habits, domestic relations, and the like, making the abandonment of home and family improbable, and showing a want cf all those motives which can be supposed to influence men to such acts, may be sufficient to raise the presumption of death, or from which tlie death of one absent and unheard from may be inferred, without regard to the duration of such absence.”

This is the holding of the Supreme Court of Iowa in the case of Tisdale v. Connecticut Mutual Life Ins. Co., 26 Iowa, 170, 96 Am. Dec. 136, and meets with the approval of this court. In that case the court asks the question, “must seven years pass, or must it be shown that he (the absent person) was last seen or heard of in peril, before his death can be presumed?” and, answering the question in the negative, said:

“No greater wrong could be done to the character of the man than to account for his absence, even after the lapse of a few short months, upon the ground of a wanton abandonment of his family and friends. He could have lived a good and useful life to but little purpose, if those who knew him could even entertain such a suspicion.”

The court then proceeds to remark that evidence of the character we have mentioned raises a presumption of death, for the reason that:

“Absence from any other cause, being without motive and inconsistent with the very nature of the person, is improbable.”

is much authority to the effect that, where one has been absent and unheard of for seven years, the presumption arises that he is then dead, but not that he died at any particular time theretofore, and that whoever finds it important to establish death at any particular pm-iod must do so by some kind of evidenceJj The evidence, however, need not be direcror positive; it may be circumstantial according to many of the adjudicated cases. Notably among such cases are those decided by the appellate courts of Missouri. Those courts have adopted the doctrine of Tisdale v. Insurance Co., supra, and hold with the Supreme Court of Iowa that the court or jury might, in a proper case, infer the death of the absent person had occurred before seven years had expired, even though he was not exposed to some peril which would be apt to shorten his life, and that the conclusion of death at an earlier period could be drawn upon proof of any facts which, according to common experience, made it probable the party, if alive, would have communicated with his friends. Bradley v. Modern Woodmen of America, 146 Mo. App. 428, 124 S. W. 69; Johnson v. Sovereign Camp Woodmen of the World, 163 Mo. App. 728, 147 S. W. 510; Springmeyer v. Sovereign Camp W. of W., 144 Mo. App. 483, 129 S. W. 272. In those cases it devolved upon the plaintiff to show that the insured died before the policy was forfeited for nonpayment of dues, and, upon evidence of no greater probative force than the evidence adduced upon the trial of the instant case, it was held a recovery might be had.

The case as made for the appellee is fairly reflected in the court’s conclusions of fact stated in a former part of this opinion, and it becomes unnecessary to detail the evidence upon which those conclusions are based. It is sufficient to say that the evidence supports the court’s findings of fact, and that the facts found to exist justified the conclusion that James W. Robinson was dead, and that he died at or about the time of his disappearance.

The record disclosing no reversible error, the judgment of the court below will be affirmed.

Affirmed.
      <g=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes