text:
    WALKER v. STATE.
    (Court of Criminal Appeals of Texas.
    April 16, 1913.)
    1. Homicide (§ 303*) — Instructions — Defense oe Property.
    Where deceased had rented a farm from the father of accused, reserving the right to the pecan crop, and accused was on the land threshing such trees when deceased ordered him off the premises, and used threatening language and made a hostile demonstration, on trial for his murder, an instruction on the issue of defense of property should have been given, Pen. Code 1911, arts. 1107, 1109, 1110, providing that homicide in protection of property against an unlawful attack after all other means proved unavailable is justifiable if the attack produces fear of death or serious bodily injury.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 635; Dec. Dig. § 303.]
    2. Homicide (§ 295) — Admissibility of Evidence — Provocation by Insulting Remarks.
    Wherever there is insulting conduct or words at the time of a difficulty and there had been prior insulting remarks which had been conveyed to the accused, and the killing ha'd been upon the first meeting, both causes should be included in the charge on provocation.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 606-609; Dec. Dig. * 295.]
    3. Homicide (§ 309) — Instructions — Manslaughter with Reference to Threats.
    Where threats uttered by deceased against defendant had been communicated to defendant, the conduct of deceased in approaching defendant and making a hostile demonstration, and using threatening language, entitled defendant to a charge on manslaughter from the standpoint of decedent’s threats.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 649, 650, 652-655; Dee. Dig. § 309.]
    4. Homicide (§ 181) — Admissibility of Evidence — Uncommunicated Threats.
    Wheye insulting conduct and language used by deceased with reference to defendant’s wife and sister had been communicated to defendant, grossly insulting remarks by deceased referring to them, but which were not communicated to defendant, were admissible as corroborative of the communicated insults, and also as tending to show that deceased uttered the communicated insults.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 383-385; Dec. Dig. § 181.]
    5. Criminal Law (§ 361) — Admissibility of Evidence — Age of Insulted Female Relative.
    Where deceased had said that a sister-in-law of defendant who was living at his house with her married sister was a prostitute, evidence that ¿he was only 14 was admissible as tending to lessen the probability that a child of that age would be a prostitute.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 802, 803; Dec. Dig. § 361.]
    6. Criminal Law (§ 1106) — Appeai>-Time for Filing Transcript.
    Transcripts are required to be made up and filed in the Court of Criminal Appeals at once upon adjournment of the trial court.
    [Ed- Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2890-2892; Dec. Dig. § 1106.]
    Appeal from District Court, Navarro County; H. B. Daviss, Judge.
    Louie Walker was convicted of murder in the second degree, and he appeals.
    Reversed and remanded.
    Richard Mays and Callicutt & Call, all of Corsicana, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, P. J.

The record is very voluminous, a great number of questions are presented by bills of exception, and motion for new trial relating to charges given and refused, and testimony admitted and rejected. The conviction resulted in murder in the second degree with five years’ punishment.

The court refused to charge the jury with reference to the defense of property. He gave a charge with reference to self-defense as well as self-defense viewed from the standpoint of threats and demonstrations to execute the threats.

Deceased had rented land from George B. Walker, father of appellant. The rental contract was verbal, but with the understanding that the pecan crop on trees growing on the land was reserved by Walker with the right to gather the pecans. A small barn on the premises was also reserved, as well as a small potato patch. The reason given for reserving the, pecan crop was, first, Mr. Walker wanted the pecans himself; and, second, he did not want anybody threshing the trees because they would injure the trees so they would die, as some of the trees had previously died from this cause. He also reserved the right to operate the, property for mineral purposes, drilling wells and pumping them after being drilled, laying pipe and guy derricks. This was to carry out a contract with the Smith-Kerr Oil Company. That part of the contract relating to the oil matter covered digging wells and laying pipe, and erecting derricks, etc. When the pecans began to ripen, there is evidence showing' that deceased threshed one or more of the trees, whereupon the elder Walker employed appellant to gather the pecans with authority to employ hands to assist. The next day appellant and Hargraves went to where the trees were, and began gathering the pecans. Appellant carried his gun with him. Deceased was at the time picking cotton with some of his children and hands 500 or 600 yards away. When appellant began gathering the pecans, the deceased approached him, and an angry conversation occurred. Appellant testified when he first saw the deceased and his daughter southwest of his house, appellant and deceased living not far apart, the daughter was going in a fast walk towards the house, and deceased was approaching appellant. When deceased reached a gap and came down the lane opposite where appellant was threshing pecans at about 40 yards distant, deceased called Hargraves, who was assisting appellant in threshing the pecans, and said, “Hargraves, if you don’t want to get in serious trouble, you just stand aside.” Hargraves went to where appellant was, and said, “Louis, you had better look out.” Hargraves then got his hat, and got off to one side. About the time that Hargraves told appellant to look out, using the language above quoted, appellant told deceased he was not gathering pecans for himself. Deceased said to him he did not care, they were his pecans, and he had to let them alone. Quoting, then appellant said: “I told him he had been threshing pecans, and we wanted to thresh some for our own use. He said it was a damn lie. I replied, ‘It is just only a day or two ago that my wife stood in our front door, and saw you threshing that tree where the ladder is.’ He said, ‘She did not see me doing any such thing.’ I said, ‘That’s mighty hard to take;’ and he replied, ‘You will have to take that or worse, you black greasy son of a bitch;’ and when he made that remark he threw his hands around to his hip pocket and turned this way. I took a step and got my gun and fired as quick as I could, and when I fired the first shot he turned in this position and was working at his pocket with both hands, and I fired the second time.” Without going into further detail as to what occurred at the time, the contention of appellant was that the language and acts raised, first, manslaughter; second, self-defense from apparent danger; third, self-defense viewed in the light of threats; and, fourth, the right to defend property. The court did not charge upon the defense of .property. He gave a charge, however, on self-defense as well as self-defense viewed in the light of threats and demonstration to draw a pistol. In view of what was said at the time, that appellant would have to get off the premises and not gather the pecans, viewed in the light of demonstration, acts, and words, we are of the opinion the law of defense of property was involved in the case, and a charge presenting that question should have been given to the jury. Sims v. State, 36 Tex. Cr. R. 167, 36 S. W. 256; Sims v. State, 38 Tex. Cr. R. 637, 44 S. W. 522; Revised Penal Code, arts. 1107, 1109, 1110; Woodring v. State, 34 Tex. Cr. R. 420, 30 S. W. 1060; Carr v. State, 41 Tex. Cr. R. 380, 55 S. W. 51; Pryse v. State, 54 Tex. Cr. R. 523, 113 S. W. 938; Weaver v. State, 76 S. W. 564. The majority does not hold that defense of property is presented by the facts. The writer does.

The court in his charge on manslaughter limited the provocation of insulting conduct to the time of the difficulty. This was error under the facts. There had been previous insulting remarks of a very coarse nature uttered by deceased about defendant’s wife and her sister, who was living with the defendant and his wife at the time, spoken of in the testimony as a “little girl.” Some of these insulting remarks and accusations of prostitution had been conveyed to appellant, and the testimony shows this was the first meeting after being informed of some of the insulting remarks. Wherever there is insulting conduct or words at the time of the difficulty, and there are also prior insulting remarks which had been conveyed to the accused, and the killing happened upon the first meeting, both causes should be included in the charge. A defendant is entitled to a charge in reference to previous insulting remarks or conduct that had been communicated upon the first meeting with the party who uttered the insulting language or did the insulting acts, or was guilty of the insulting conduct, and the charge is error which fails to properly so instruct the jury. This is so under all the authorities.

In this connection it is well enough here to say that the conduct of the deceased was such at the time, viewed from the defendant’s standpoint, to have required also a charge on manslaughter from the standpoint of his acts and conduct with reference to the manner of approaching appellant with a view of making him leave the premises. There had been threats uttered by deceased which had been communicated to the appellant. Manslaughter, we think, under the facts should have been charged from that standpoint, viewed in the light of the facts attending the conduct of deceased when he approached appellant.

Another question Is suggested for reversal. In addition to the insulting conduct and language used with reference to appellant’s wife and sister-in-law, which had been communicated, there was offered testimony showing that other remarks of a similar nature which were not communicated. The language was of a grossly insulting nature in which he referred to appellant’s wife and sister-in-law as being prostitutes and whores. These were offered by the defendant, but upon objection by the state same were not permitted to go to the jury. This was error. This question was discussed in a very recent case of Davis v. State, 155 S. W. 546. These were corroborative of the testimony which showed communicated insults and conduct, and would strongly tend to strengthen the belief that the communicated threats were uttered by the deceased. Uncommunicated insults are admitted upon the theory that it would reduce to manslaughter or afford an adequate cause, but as corroborative of that which was communicated, and as also tending to show that deceased made the remarks that were communicated. It would also tend to throw light upon the action of the deceased at the time of the meeting at the pecan tree. It would tend to show deceased would more probably do as appellant contended he did when he approached appellant. There had been a previous difficulty between the parties, and threats made by the deceased, some of which were communicated and perhaps some not communicated to appellant. It is unnecessary to discuss this matter further. This character of testimony was admissible.

The insulting language was used by the deceased in regard to the sister-in-law of appellant, who was an inmate of his house. Some of the witnesses spoke of her as a little girl. The appellant proposed, in this connection, to prove her age to be 14 years. This was rejected. While we do not think this of very grave importance, still he would have a right to show her age, thus lessening the probability that a child of that age would be a prostitute, and especially within the knowledge, connivance, and cognizance of his wife, the girl’s married sister, and who was coupled with the sister-in-law as being a prostitute. She was under the protection of appellant and his .wife, and it was insulting conduct of a very serious nature to accused a man’s wife, not only of being herself a prostitute, but of permitting and conniving at the prostitution of her young sister only 14 years of age. Upon another trial, if this testimony is offered, it should be permitted to go to the jury. ■

There are quite a lot of exceptions to the charge on self-defense and refusal to give requested instructions both as to self-defense proper as well as self-defense viewed in the light of threats. We are of opinion, without discussing those questions, that the court’s charge was not as full or pertinent as it should have been, and did not as fully and fairly present those matters as they should have been presented. Appellant’s charges undertook to supply these defects. ' Upon another trial the court will understand, without going into a discussion of those matters, that the charge should be fully and fairly presented covering all these questions of self-defense as well as manslaughter here-inbefore discussed as called for by the evidence.

This ease was tried November 22, 1911, and the record filed in this court February 14, 1913. Why this delay in filing the transcript here is not explained, nor sought to be explained. We have called attention to this character of delay several times. This court will feel called upon to exercise its authority in matters of this kind. Transcripts are required to be made up and filed in this court at once upon adjournment of the trial court. Trial courts will take notice, and see that records are forwarded at once, and the clerk must be prompt in preparing and filing records.

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


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    McDONALD et al. v. STATE.
    (Court of Criminal Appeals of Texas.
    April 16, 1913.)
    1. Criminal Law (§ 1131) — Appeal—Dis-missai>-Escape.
    Where defendant pending his appeal has escaped from custody, his appeal will be dis<missed.
    [Ed. Note. — For other cases, see Criminal Law, Cent Dig. §§ 2971-2979, 2985; Dec. Dig. § 1131.]
    2. Criminal Law (§ 200) — Defenses—Different Offenses in Same Transaction.
    Under the express provision of Pen. Code 1911, art. 1317, a conviction of burglary of a box car would be no bar to a prosecution for theft of goods after the entry had been effected.
    [Ed. Note. — For other- cases, see Criminal Law, Cent. Dig. §§ 347, 386-409; Dec. Dig. § 200.]
    3. Judgment (§ 751) — Conclusiveness — Criminal Prosecution.
    The fact that an indictment for burglary alleged possession' of the premises in one person and that an indictment for theft growing out of the same transaction alleged possession of the goods in another person would not necessarily present a variance.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1309, 1310; Dec. Dig. § 751.]
    4. Larceny (§ 32) — Property Subject to Larceny — Possession.
    A railroad yardmaster having the care and control of freight at a certain point had the legal possession of goods in cars there.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 81-92, 99; Dec. Dig. § 32.]
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    John McDonald and George Harper were convicted of theft, and, they appeal.
    Appeal of McDonald dismissed, and judgment as to Harper affirmed.
    See, also, 152 S. W. 1061.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellants were jointly indicted and prosecuted, charged with theft of property over $50 in value, and the punishment assessed against each was four years’ confinement in the penitentiary.

Pending this appeal affidavits have been placed on file in this court showing that McDonald escaped from custody. Consequently the appeal as to him will be dismissed. -

■ At the time of their arrest appellants were found in possession of the stolen goods in Harris county, and we think the other circumstances in evidence are sufficient to justify the jury in coming to the conclusion that they were stolen from the cars while they were stopped at the division near Sellars, in Harris county.

The fact that appellants had also been convicted of burglary of this box car would be no bar to the prosecution for theft of goods after the entry had been effected. Article 1317, Penal Code.

We cannot know under the record in this case in whom the evidence in the burglary trial showed the car to be in possession of, and the fact that the indictment in that ease alleged possession in a different person from whom the possession of the stolen goods are alleged in this indictment would not necessarily present a variance; in fact, it frequently occurs that a burglarious entry is made in one person’s house and goods of another stolen after the entry.

Without attempting to pass on the sufficiency of the proof in the other case in which appellants were charged with burglary of a house belonging to Englehart, in this case the evidence sufficiently shows that Holdner was legally in possession of the goods stolen; he being yardmaster at Sel-lars, having the care and control of freight at that point — a division point.

The judgment is affirmed as to George Harper.


author: DAVIDSON, P. J.

text:
    THORNTON v. STATE.
    (Court of Criminal Appeals of Texas.
    March 12, 1913.
    On Motion for Rehearing, April 16, 1913.)
    1. Bail (§ 64) — Criminal Prosecutions — SUJSTTCIENCY.
    A recognizance reciting that appellant stood charged with the offense of knowingly turning stock on the inclosed lands_ of another without his consent, but not showing that he had been convicted or the amount of the judgment of conviction as the statute requires, was insufficient.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. § 278; Dec. Dig. § 64.]
    On Motion for Rehearing.
    2. Animals (§ 102)— Turning into Inclosed Land oe Another — Criminal Prosecution.
    A tenant of land as to which the landlord reserved no control who after some of the cotton crop had been gathered and after a severe storm had ruined nearly all of the cotton crop turned his stock in the inclosure, but kept them from what cotton was left, so that no injury was done to any crop, could not be convicted of knowingly turning stock into the inclosed land of another without his consent.
    [Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 366-370, 386-389; Dec. Dig. § 102.]
    Appeal from Haskell County Court; A. J. Smith, Judge.
    W. T. Thornton was convicted of knowingly turning stock on the inclosed lands of another without his consent, and he appeals.
    Reversed and remanded.
    W. H. Murchison, of Haskell, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, P. J.

The Assistant Attorney General moves to dismiss the appeal for want of a sufficient recognizance.

An'inspection of the recognizance shows that the motion is well taken, and must be sustained. The recognizance recites that appellant stands charged with the offense of knowingly turning stock on the inclosed lands of another without his consent, but it does not show that appellant had been convicted or the amount of the judgment of conviction as the statute requires. Appellant may remedy this by filing within the time allowed by law a sufficient recognizance, and by this means reinstate his appeal; but as the matter is presented the motion must be sustained.

Wherefore it is ordered that the appeal be dismissed.

On Motion for Rehearing.

On a former day of the term the appeal herein was dismissed because of want of proper recognizance. Since the dismissal a sufficient recognizance has been filed, and the cause is reinstated.

On the face of the matter’s presented by the record for- disposition there are several questions of importance. However, in view of the evidence, we deem it unnecessary to discuss the various legal questions. The evidence is not controverted that appellant rented the place from Smith and his daughter Mrs. Johnson for the year 1911; that he went in possession and raised crops upon the premises, which consisted of about 100 acres. In August there was a severe hailstorm which ruined the cotton crop to such an extent there were only two or three bales of cotton raised on the place. There was some cane, kaffir corn, and maize planted, which crops had been gathered at the time of the alleged turning in of the stock in the inclosure, which latter act occurred in November, 1911. There was no authority reserved in Smith or Johnson to control the premises, and no stipulation of any kind that appellant could not turn his stock in the inclosure. It is in evidence, and undisputed, that no injury was done to any crop by the stock being turned in the inclosure. There was a little cotton still ungathered at the time, and when Mr. Smith first objected to the horses being turned into the inclosure about November, 1911, appellant stretched a wire across the field so they could not reach the cotton. During the day his family, who were gathering cotton, did not permit the stock to enter that part of the inclosure, and at night they were taken out, and it seems to -be undisputed that no injury was done any crop. All the crops of every kind had been gathered prior to the time -of turning the stock into the inclosure, except some scattering cotton. The indictment alleged joint possession in Smith and Johnson with appellant of the premises. There is no evidence to support this allegation. The uncontroverted evidence is that appellant was in possession of the 100 acres for the entire year, which it is agreed lasted from 1st of January to 31st of December, 1911. It is also in evidence that another party rented from Smith the adjoining farm, or one across the creek from that rented by appellant. That renter turned his stock in upon the farm he had rented without objection or protest from Smith. This is undisputed. It is further in evidence and .not disputed that neither the land nor the crops were injured by turning the horses in the inclosure by appellant. The 100 acres was controlled by and in possession of appellant for the year by the terms of Ms tenancy. He had a right to control the premises for all reasonable purposes. Under all the authorities, appellant ought not to have been convicted on the facts. Coggins v. State, 12 Tex. App. 109; Jones v. State, 18 Tex. App. 366, and numerous other cases unnecessary here to cite. None of the cases are in conflict with the two cases cited, and in fact they are all in harmony with and support these cases.

The motion for rehearing is granted, the judgment is reversed, and the cause is remanded.


text:
    LINER v. STATE.
    (Court of Criminal Appeals of Texas.
    April 16, 1913.)
    1. Witnesses (§ 260) — Refreshing Memory — Contradictory Statements. .
    Where the testimony of witnesses for the state was unsatisfactory, and they appeared unwilling and unfriendly, it was permissible for the county attorney to refresh their memory by calling their attention to statements previously made by them; but, if their memory could not be thus refreshed, it was not permissible to prove such statements as a basis for conviction.
    [Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. §§ S97, 898; Dec. Dig. § 260.]
    2. Ckiminal Law (§ 417) — Evidence—Declarations oe Witness.
    Statements made by witnesses for the state to the county attorney at an ex parte hearing at which accused was not present are inadmissible to prove the offense charged.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 950-967; Dec. Dig. § 417.]
    3. Criminal Law (§ 673) — Trial—Instructions — Limitation of Evidence.
    Where, after certain witnesses for the state had testified unfavorably, the court permitted evidence of contradictory statements made by them, it was error to refuse to charge that such statements not admitted by the witnesses to be true were not competent to establish defendant’s guilt of the offense charged.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1597, 1872-1876; Dec. Dig. § 673.]
    4. Criminal Law (§ 722) — Trial—Misconduct of County Attorney — Improper Argument.
    In a prosecution for willfully breaking the windows of a schoolhouse, the county attorney in argument said: “A lot of boys that would disturb a poor innocent negro would do anything.” “It is coming to a pretty pass that the people in the community where this crime took place are afraid to have meetings at night on account of these boys, and I want you to give a verdict in this case to punish them for their nefarious conduct.” “I could tell you about gin belts being cut and pistols being carried down in the neighborhood of the trouble where these boys live, and it would open your eyes.” There was no evidence that defendant had disturbed a negro, that the people in the community were afraid to hold meetings at night, or that defendant was a party to the nefarious conduct spoken of, nor was it shown that accused had been guilty of cutting gin belts or carrying a pistol. Held, that the attorney’s argument constituted prejudicial error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1674; Dec. Dig. § 722.]
    Appeal from Hopkins County Court; Dan R. Junell, Judge.
    Will Liner was convicted of willfully injuring school property, and he appeals.
    Reversed and remanded.
    D. Thornton, of Sulphur Springs, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was convicted of the offense of willfully injuring real property — breaking the windows out of a schoolhouse — and was fined $25.

The witnesses relied on mainly by the state to secure a conviction are Marion Liner and Lewis Teer. It appears that these two boys were carried before the county attorney, and first denied any knowledge of the matter, but later stated that appellant and Orr and Leland Jones had told them they committed the offense, broke out the windows and cut the blackboard.

On the trial of the case the testimony of Marion Liner and Lewis Teer was not satisfactory to the county attorney, and he was permitted to ask them if they had not made a written statement, and prove by them the contents of such statement. If they were unwilling and unfriendly witnesses, it was perhaps permissible to permit him to refresh their memory, but, when it could not be thus refreshed, it was not permissible to prove by the constable what statements these boys had made to the county attorney as a basis upon which to found a verdict of guilty. If the state desired to prove contradictory statements made by these two boys to impeach them, of course it would have been permissible, but this was not the object nor purpose of the state, for, if their testimony was disbelieved, there would be no testimony to support a verdict of guilty. And certainly it would not be permissible to prove by the constable what Marion Liner and Lewis Teer had said on a former occasion as evidence against the appellant. He was not present when these statements were made to the county attorney, the hearing was ex parte, and under no theory of law was it admissible as evidence that defendant was guilty of the-offense, and the court erred in admitting it for that purpose.

After the court had admitted this testimony over the objection of the defendant, the defendant then requested the court to instruct the jury: “The statements made by the witnesses Marion Liner and Lewis Teer before Jno. T. Hyde, T. J. Flewharty, and Charley Kennemur, in the county attorney’s office, shortly after the windows of the schoolhouse had been broken out, in the absence of the defendant, which statements were testified to by the witnesses Marion Liner and Lewis Teer and the witness Charley Kennemur on the trial of this ease and not admitted to be true by the witnesses Marion Liner and Lewis Teer, is not competent evidence to be used by the state in its effort to establish the guilt of the defendant on the charge as made by the bill of information in this prosecution.”

If tlie court was going to permit constable Kennemur to testify what the boys said to the county attorney at the ex parte hearing, then certainly this charge should have been given. It is also made to appear that during his closing argument the county attorney said: “A lot of boys that would disturb a poor innocent negro would do anything.” As there was no evidence that this appellant had disturbed a poor, innocent negro, if one had been disturbed, this was improper. Again, it is shown he said: “It is coming to a pretty pass that the people in the community where this crime took place are i.fraid to have meetings at night on account of these boys, and I want you to give a verdict in this case to punish them for their nefarious conduct.” It may be a matter within the knowledge of the county attorney that the people of the community were afraid to have meetings at night, yet there is no evidence in this record that such a state of affairs exists. And, if it did exist, there is no evidence that this appellant was a party to the nefarious conduct. But the county attorney in his anxiety to secure a conviction went further, and said: “I could tell you about gin belts being cut and pistols being carried down in the neighborhood of the trouble where these boys live and it would open your eyes.” This appellant was not on trial for cutting gin belts or carrying a pistol; there is no evidence in the record, outside of the speech of the county attorney, showing that such things had transpired, and, if they had, that the appellant in this case had either cut any belts or carried a pistol. If he had been guilty of either of those offenses, and the county attorney knew enough to tell the jury about it in a way that would open their eyes, we would suggest he institute prosecutions against those guilty of such offenses.

It is hardly fair to one on trial for an offense to seek to hold him responsible for offenses of every nature and character that has taken place in the community in which he resides, where there is no evidence in the record that he was a party to such other offense or offenses.

Reversed and remanded.


text:
    ROBINSON v. STATE.
    (Court of Criminal Appeals of Texas.
    April 16, 1913.)
    1.Witnesses (§ 359*) — Impeachment—Character of Witness.
    Where the prosecuting witness had testified that she did not know whether she had been indicted for a felony within the last two or three years, the original indictment against such witness for a felony was admissible as impeaching evidence.
    [Ed. Note. — Bor other cases, see Witnesses, Cent. Dig. §§ 1161, 1162; Dec. Dig. § 359.*]
    2. Witnesses (§ 350) — Impeachment — Contradiction of Witness.
    An indictment against a witness for a felony, returned within two years, was not too remote to be admissible to impeach her.
    [Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. §§ 1140-1149; Dec. Dig. § 350.]
    3. Criminal Law (§ 800) — Instructions— Assault with Intent to Kill.
    In a prosecution for assault to murder, where the questions as to who was the attacking party, and as to the intent of defendant in using a knife, were in issue, an instruction that if the assault was not made under sudden passion, produced by an adequate cause, defendant was guilty of an assault with intent to kill, without defining or explaining what constituted adequate cause, was erroneous.
    [Ed. Note — For other cases, see Criminal Law, Cent. Dig. §§ 1808-1810; 1812; Dec. Dig. § 800.]
    Appeal from District Court, Tom Green County; J. W. Timmins, Judge.
    Lizzie Robinson was convicted of assault, to murder, and she appeals.
    Reversed and remanded.
    W. A. Anderson and Bell & Upton, all of San Angelo, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, P. J.

Appellant was convicted of assault to murder; her punishment being assessed at two years’ confinement in the penitentiary.

There were two theories about this case. The state’s case was substantially that appellant found Louise Booker, the alleged assaulted party, in a restaurant, called her out, remarking, to her that she wanted to see her. As Louise Booker walked out of the door, appellant began' cutting her, and she called for help. The wound was inflicted with a pocket knife, the blade of which was about two inches long. Booker was cut twice in the left shoulder, and one of her fingers was also cut. Dr. De Long attended her, and his testimony shows that he found on her three wounds, one on the finger and two on the arm or shoulder. These wounds were something like 1 y2 or 2 inches deep, and about an inch or two in width or length; they were not very long. “It seemed that the knife was just stuck in.” He says: “I believe one of the wounds was just below the point of the shoulder.” The witness Booker says she did not have any words with appellant; that appellant remarked, “You God damned bitch, I am going to kill you.” She says there had never been any trouble between her and appellant prior to that time. She further testified on cross-examination that Lizzie Robinson did not call her out of the restaurant and ask her why she had caused the officers to go down to her house, and she further testified she did not call appellant a damned lying bitch, and did not strike her. This is practically the state’s case. The sheriff, Allen, testified he had known Louise Booker about a year; she had had several fights and had been arrested a lot of times; that he had also known defendant, and this was the only trouble he ever knew of her having. Louise Booker denied having been indicted or prosecuted or paying any fines within the last two years for being a common prostitute, or vagrant, and did not remember she had been indicted twice within the last three or four years and had secured the services of Mr. Upton to defend her. The defendant then offered in evidence two indictments against Louise Booker, which were objected to by the state, and the objection sustained. Appellant testified she had on the evening mentioned been to a show, and that Mr. Cunningham came and knocked on her door, and said he had heard somebody was gambling in her house, and he was going to have her up before the grand jury. She says she then went up to the restaurant to get something to eat and found Louise Booker in the restaurant and asked her why she sent the officers to her house. Louise Booker replied, “You lying bitch,” and slapped her, and they went to fighting. Appellant says she had a knife; it was not open at the time. When Louise Booker slapped her she clinched her and hit her (appellant) with her fists. “I was not trying to kill her that night, and did not know she was in the restaurant until I went in.” She says she did not want to kill her, and did not know how many times she had cut her; that she opened her knife with her teeth after the witness Booker had “clinched” her. She was not able to give a definite description of the knife, but the knife was shown to be a pocket knife with a blade about two inches long. This does not seem to be controverted. Appellant’s testimony is sustained substantially by the witness Love. Branch was offered as a witness, and testified he was justice of the peace, and knew the witness Booker, and had known her for two years; he gave her a bad reputation for truth and veracity. Defendant also offered to prove by this witness that Louise Booker had pleaded guilty and paid fines in the justice court for vagrancy within two years. This testimony was not permitted to go to the jury on objection by the district attorney. The witness Cunningham testified he was deputy marshal; he gave Louise Booker a bad name; he says she was the most boisterous negro they “ever had down there”; that he remembered the night of the difficulty between Louise Booker and appellant; that Louise Booker had given him information that caused him to go to Lizzie Robinson’s house to look for parties said to be gambling, but failed to find any gambling at appellant’s house.. Despain testified also for the defendant as 'to the bad reputation for truth and veracity as well as the reputation of the witness Booker for being a quiet and peaceable citizen. He said it was bad in both respects. This is the substance of the case.

A bill of exceptions recites that after the witness Louise Booker had testified she did not know whether she had been in-dieted for a felony within the last two or three years, and after the state rested its case, the defendant offered in evidence the original indictment in cause No. 1,799 in the district court of Tom Green county, Tex., styled State of Texas v. Louise Booker. The bill then sets out a certified copy of the indictment showing that she had been charged with theft from the person of one Juan Perez. This evidence was rejected; that is, it was not permitted to go before the jury on objection by the state. While the purpose for which this evidence was offered is not stated, we are of the opinion its purpose was obvious, and under the authorities, if the purpose is obvious, the bill should be considered. What effect this may have had on the jury we are unable to say, but it was admissible testimony as impeachment for two reasons: First, it was an indictment for a felony, the indictment having been preferred at the December term, 1910, of the district court, and therefore was not too remote to be used as impeaching testimony; and, second, to impeach her on the statement that she had not been indicted, or if she had she did not recollect it.

There is another question suggested for reversal, based upon the supposed defect in the court’s charge. The court charged the jury that if they were satisfied from the evidence beyond a reasonable doubt that said assault was not made under the immediate influence of sudden passion produced by an adequate cause, as the same is hereinafter explained, then they will find the defendant “guilty of assault with an attempt to murder,” and that said charge nowhere defines nor explains to the jury the meaning of, or what may constitute, adequate cause. The court nowhere defines what it takes to constitute adequate cause. We are of opinion that this part of the court’s charge is error. The issue was in the case as to who was the real attacking party, and it was also a question made by the evidence as to the purpose and intent of appellant in using the knife. The circumstances made by the two conflicting issues were wide apart, and appellant was entitled to have a favorable charge on her side of the case. .Had this been given, the jury may not have found her guilty of a higher offense than aggravated assault. It is a very serious question as to whether assault with intent to murder was committed; therefore, the court should have instructed very fully with reference to these matters. The jury allotted appellant a term in the penitentiary. The writer does not believe the evidence raises the assault to the dignity of one that was committed with intent to murder.

The judgment is reversed and the cause is remanded.'


text:
    SMITH v. STATE.
    (Court of Criminal Appeals of Texas.
    April 16, 1913.)
    1. Criminal Law (8 368) — Evidence—Statements of Third Persons — Res Gestas.
    Where defendant killed the husband of his stepdaughter, evidence of a witness that at the time of the shooting she heard defendant’s stepdaughter say that she told defendant “not to do that,” was admissible as res gest83,_ being an exclamation coincident with the firing of the shots by a party concerning whom the trouble arose.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 806, 812, 814, 815, 821; Dec. Dig. § 368.}
    2. Homicide (§ 338) — Appeal—Prejudice.
    Where accused pleaded self-defense in a prosecution for killing the husband of his stepdaughter, error, if any, in admitting a declaration of the latter at the time of the killing that she told accused “not to do that,” did not impair the defense, and was not prejudicial to accused.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. 88 709-713; Dec. Dig. § 338.]
    3. Homicide (§ 174) — Evidence — Declarations of Accused.
    Statements made by accused to his son immediately after having killed deceased were admissible on behalf of the state.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 359-371; Dec. Dig. § 174; Criminal Law, Cent. Dig. § 778.]
    4. Witnesses (8 255) — Refreshing Recollection.
    Where a witness’ written statement was taken shortly after a homicide, and on the trial he denied independent recollection of the matter, and after being shown his former statement testified that he had a vivid recollection of what was on the paper, but did not recollect anything he heard on the night of the killing independent of the paper, he was properly permitted to testify after reading the paper and refreshing his recollection as to the facts there recorded.
    [E'd. Note. — For other cases, see Witnesses, Cent. Dig. 88 874-890; Dec. Dig. § 255.]
    5. Homicide (§ 188) — Self-Deeense—Char-acter of Deceased — Isolated Acts of Misconduct.
    Where accused, on trial for killing his son-in-law, pleaded self-defense, evidence that on one occasion witness Who resided near deceased remonstrated with him for cursing deceased’s wife in the hearing of the witness’ wife, at which deceased threatened witness, was inadmissible under the rule that isolated acts showing that deceased is a dangerous man are inadmissible, in the absence of proof of knowledge thereof on the part of accused at the time of or prior to the difficulty.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. 88 391-397; Dec. Dig. § 188.]
    6. Criminal Law (§ 1090) — Appeal—Rulings on Evidence — Bills of Exception-Necessity.
    Rulings on evidence cannot be considered on appeal, where no bills of exception thereto are contained in the record.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. 88 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dee. Dig. $ 1090.]
    7. Homicide (§ 308) — Second-Degree Murder-Instructions.
    The court charged that malice is a necessary ingredient of murder in the second degree, the distinguishing feature being that in murder in the first degree malice must be proved beyond a reasonable dcubt as an existing fact, while in second-degree murder it may be implied from the fact of an unlawful killing; that implied malice is that which the law infers from or imputes to certain acts, however suddenly done, and when the fact of an unlawful killing is established, and the circumstances do not establish express malice beyond a reasonable doubt or mitigate, excuse, or justify the act, the law implies malice and the crime is murder in the second degree, that every person is permitted by law to defend himself against unlawful attack reasonably threatening injury to his person, and is justified in using all necessary and reasonable force to that end, that homicide is justified when committed in defense of one’s own person against an unlawful attack made in such manner as to produce a reasonable expectation or fear of death or serious bodily injury, and if the jury believed beyond a reasonable doubt that, with implied malice aforethought, accused unlawfully shot and killed deceased with a pistol as charged, they should find him guilty of murder in the second degree. Meld, that such instruction sufficiently required that the killing be unlawful and with malice, and was not objectionable as requiring a conviction, though the killing was done under the immediate influence of sudden passion arising from an adequate cause or in self-defense.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. 88 642-647; Dec. Dig. 8 308.]
    8. I-Iomioide (§ 309) — Self-D!efense — Manslaughter.
    The fact that accused claims that a killing was in self-defense does not necessarily require a charge on manslaughter.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §3 (¡49, 650, 652-655; Dec. Dig. 3 309.]
    9. Homicide (§ 300) — Self-Defense — Threats — Instructions.
    Where, in a prosecution for killing accused’s son-in-law, there was evidence that on the evening of the killing he had received a threatening message from deceased, accused was entitled to an affirmative instruction that if deceased had made the threats or accused had been so informed, and deceased, by his words or conduct or any act then done, created a reasonable apprehension or fear in accused’s mind that deceased was about to slay him or do him serious bodily injury, or the jury had a reasonable doubt of that fact, they should acquit.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616 — 620, 622 — 630; Dec. Dig. 8 300.]
    Appeal from District Court, Collin County; J. M. Pearson, Judge.
    N. E. Smith was convicted of murder in the second degree, and he appeals.
    Reversed and remanded.
    J. D. Cottrell, of Plano, and Doyle & Brown, of McKinney, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For other oaso3 see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, J.

Appellant was prosecuted, charged with murder, convicted of murder in the second degree, and his punishment assessed at seven years’ confinement in the penitentiary.

Briefly stated, appellant killed the man who married his stepdaughter. Deceased and his wife had separated on more than one occasion, and were living apart at the time of the tragedy; she being with her stepfather. Reports as to what deceased intended to do had been carried to appellant, and on the evening of the killing appellant went by a neighbor’s house, and seeing deceased in there called to him, and told him he wanted to see him, when they stepped to one side. Appellant states he says, “Will, my boy, what are you making those threats about?” when deceased replied, “No; I never said it, but I am going to kill you;” and advanced toward him with a knife in his hand, when he, appellant, shot and killed him. No one heard deceased say, “Í am going' to kill you,” except appellant, and no other person testified to an advance movement by deceased. The state’s witnesses say that the only remark they heard deceased make was, “I haven’t said anything,” when the shots were fired.

Deceased’s wife was a very material witness for appellant on this trial, and the state showed by Mrs. Sarah Collins the following fact: “When I heard the shooting, I heard the wife of the man shot say: T told papa (appellant) not to do that,’ ” Appellant objected to this testimony. Statements of third parties sometimes become res gestee of a transaction, and we are inclined to think this would be so in this case; the exclamation being made coincident with the firing of the shots would be the event speaking by a party about whom the trouble arose. Wharton’s Crim. Ev. p. 511, and note. In this ease defendant’s whole defense is bottomed upon the conduct of deceased towards the person who makes this exclamation, and matters growing out of the relations existing between deceased and his wife incident thereto. ' She is held prominently forward throughout the record, deceased’s mistreatment of her, and the threats he states were occasioned by reason of the protection he was giving her. She is not wholly disconnected with the transaction, and it is not a remark of an outsider, but one of the actors at least in the event leading up to the homicide.

However, if we should be mistaken in this view, the court withdrew the testimony and instructed the jury not to consider it, and we do not think it of that harmful or hurtful nature as to necessitate a reversal of the case. It did not tend to in the least impair his right of self-defense, if his theory was correct. Roberts v. State, 48 Tex. Cr. R. 210, 87 S. W. 147; Hatcher v. State, 48 Tex. Cr. R. 239, 65 S. W. 97, and cases there cited; Trotter v. State, 37 Tex. Cr. R. 474, 36 S. W. 278.

What defendant said to his son shortly after the killing was certainly admissible in evidence when offered by the state, but appellant contends that, if this be true, then the witness having no independent recollection of the matter, and that after being shown his former statement, which he identified, he testified: “Counsel for defendant: Do you remember what you heard him say independent of that paper? A. Since I have read what is on that paper, I have a vivid recollection of what is on that paper. Q. Do you independent of that paper recollect anything you heard that night?” to which he answered, “No.” After further examination, the county attorney asked what was his recollection of what he heard appellant say, and witness was permitted to testify: “As I ran across there -to see what the excitement was, and according to reading that paper which has refreshed my recollection Mr. Smith said, ‘Don’t tell it any other way;’ and the boy replied, T wont tell it any other way, papa.’ ” This witness had testified the day after the tragedy at the examining trial, his testimony was reduced to writing and signed by him; and in volume 11 of the Encyclopedia of Evidence it is said: “If a witness on looking on a writing is able to testify that he knows the transaction therein took place, though he has no present memory of it, his testimony is admissible” — citing a long list of authorities. In the recent case of Misher v. State, 152 S. W. 1049, we had occasion to make a thorough investigation of this question, and therein will be found cited authorities from this and other states.

The appellant introduced B. T. Red-dell, who testified: “That he lived for seven or eight months just across a fence from Will Lindsey, about ten feet distant, just a short time before Will Lindsey was killed. That he and his wife (witness and wife) were eating breakfast one morning, and Lindsey began cursing, and kept on cursing with witness’ wife hearing it. That Lindsey was cursing his, Lindsey’s, wife, cursed her and called her a damned son of a bitch and other vile words. That witness remonstrated with Lindsey for cursing in hearing of witness’ wife.” Appellant desired to go further, and prove that, when Reddell remonstrated, deceased threatened him, Reddell. The court did not err in excluding this testimony. Isolated acts which would tend to show deceased a dangerous man are not admissible in evidence, unless knowledge of them is brought to the person on trial at the time of or prior to the difficulty. Patterson v. State, 56 S. W. 59; Willis v. State, 49 Tex. Cr. R. 139. 90 S. W. 1100.

The other grounds in the motion complaining of the admissibility and rejection of certain testimony cannot be considered as no bills of exception were reserved, at least not contained in the record.

One of the principal complaints in the motion for new trial and in appellant’s brief relates to the court’s charge on murder in the second degree, appellant contending (a) it does not require the killing to be unlawful; (b) does not require the killing to be upon malice; (c) it commands a conviction of murder in the second degree, even though the killing was done under tS»e immediate in-fluenee of sudden passion arising from an adequate cause; (d) it commands a conviction of murder in the second degree, even though the killing was done in self-defense, etc. If either of these grounds are tenable, it would necessitate a reversal of the case, but we think under a fair construction of the charge none of these grounds can be sustained. Appellant cites a great many cases in his brief, and they correctly state the law as he contends; hut did not the eourt in his charge define murder in the second degree in almost the very language of those cases? After correctly defining murder in the first degree and applying the law to that phase of the case, the court instructed the jury: “Malice is also a necessary ingredient of the offense of murder in the second degree. The distinguishing feature, however, so far as the element of malice is concerned is that in murder in the first degree malice must be proved to the satisfaction of the jury beyond a reasonable doubt as an existing fact, while in murder in the second degree malice will be implied from the fact of an unlawful killing. Implied malice is that which the law infers from or imputes to certain acts, however suddenly done. Thus, when the fact of an unlawful killing is established, and the facts do not establish express malice beyond a reasonable doubt, or tend to mitigate, excuse, or justify the act, then the law implies malice, and the murder is in the second degree; and the law does not further define murder in the second degree than if the killing is shown to be unlawful, and there is nothing in evidence on the one hand showing express malice, and on the other hand there is nothing in evidence that will reduce the killing below the grade of murder, then the law implies malice, and the homicide is murder in the second degree. Every person is permitted by law to defend himself against any unlawful attack reasonably threatening injury to his person, and is justifiable in using all necessary and reasonable force to defend himself. Homicide is justified by law when committed in defense of one’s person against any unlawful attack, made in such a manner as to produce a reasonable expectation or fear of death or some serious bodily injury. If you believe from the evidence beyond a reasonable doubt that with implied malice aforethought in the county of Collin and state of Texas on the 21st day of January, 1912, as alleged, with a deadly weapon, he did unlawfully shoot with a pistol and thereby kill Will Lindsey as charged in the indictment, you will find him guilty of murder in the second degree, and assess his punishment at confinement in the state penitentiary for any period that the jury may determine and state in their verdict, provided it be not less than five years.”

That the court instructs the jury the killing must have been unlawful is readily seen; the court correctly defines implied malice in this charge under all our decisions, and correctly tells the jury the killing must have been done on implied malice aforethought before they would be justified in finding appellant guilty of murder in the second degree. In no part of this charge does it command the conviction of appellant if done under the influence of sudden passion aroused by an adequate cause, and we will here state we do not think the evidence raises the issue of manslaughter, for we can conceive nothing in evidence upon which adequate cause to create passion could be predicated. Appellant testified that at Williford’s he saw Will Lindsey. (deceased) sitting there and spoke to him, when deceased replied, “Howdy, Noel,” and then appellant says he told Will he wanted to see him a minute, and they walked together; that he then asked Will, “what are you making these threats about?” when deceased replied he had not said it, but “I am going to kill you,” and advanced on him with a knife, they being the width of a window apart; that he fired and deceased stopped, but came at him again with his knife in his hand, and he fired three more times; that the knife was open. This, if true, made a case of justifiable homicide and he should have been acquitted on his plea of self-defense.

As said by this court in Eggleston v. State, 59 Tex. Cr. R. 548, 128 S. W. 1105, the impression prevails to some extent that in every case where self-defense is an issue, the court must charge on manslaughter, but this is not the law; and for a list of authorities so holding see Kelly v. State, 151 S. W. 304. It is not fair to the court to take one paragraph of the charge and criticise it, when viewed in the light of the remainder of the charge no error is presented. The court defined implied malice in language so frequently approved by this court that it seems useless to cite the au thorities, but see Douglass v. State, 8 Tex. App. 520; Neyland v. State, 13 Tex. App. 549; Gonzalez v. State, 30 Tex. App. 224, 16 S. W. 978; Hernandez v. State, 53 Tex. Cr. R. 469, 110 S. W. 753; Barton v. State, 53 Tex. Cr. R. 443, 111 S. W. 1042; McGrath v. State, 35 Tex. Cr. R. 423, 34 S. W. 127, 941; Smith v. State, 45 Tex. Cr. R. 553, 78 S. W. 694; Carson v. State, 57 Tex. Cr. R. 398, 123 S. W. 590, 136 Am. St. Rep. 981. The court followed this with a charge on manslaughter and self-defense; and, while we have held that the court need not have charged on manslaughter under the evidence adduced on this trial, yet the charge as given is not subject to the criticism contained in the motion. It is a fair application of the law, and presents that issue more favorably to appellant than the law authorized. However, the court’s charge in applying the law of self-defense to that species of case wherein threats are shown to have been made has been held to be erroneous- in a number of eases. Gaines v. State, 53 S. W. 625; Sebastian v. State, 42 Tex. Cr. R. 84, 57 S. W. 820; Watson v. State, 50 Tex. Cr. R. 175, 95 S. W. 115; Hightower v. State, 56 Tex. Cr. R. 241, 119 S. W. 691, 133 Am. St. Rep. 966, and appellant’s criticism of this paragraph of the charge seems to be justified.

Appellant testified, and so did his son, that on that evening he had just received a threatening message from deceased about going to come down to appellant’s house, and what he was going to do to him. The state sought to raise an issue that this threat had not been made nor communicated to appellant by having a witness testify that the father was seeking to induce the person who communicated the threat to swear falsely. The court should have affirmatively informed the jury that if deceased had made the threats or appellant had been so informed, and deceased by his words or conduct or any act then done created a reasonable apprehension or fear in the mind of appellant that deceased was then and there about to slay him or do him serious bodily injury, or the jury had a reasonable doubt of that fact, they would acquit him. This was the material issue in the ease in so far as appellant’s theory was concerned, and he was entitled to have it fairly and fully presented to the jury, and on this as on all other issues he was entitled to have the reasonable doubt applied.

The judgment is reversed, and the cause is remanded.


author: HARPEORi, J.

text:
    LOPEZ v. STATE.
    (Court of Criminal Appeals of Texas.
    April 16, 1913.)
    1. Abduction (§ 1) — Female—“Prostitution.”
    “Prostitution,” as used in Pen. Code 1911, art 1060, prohibiting the taking of a girl under 14 from her parents for the purpose of prostituting her, does not mean that the purpose shall be indiscriminately selling her person to others; the offense being committed if the defendant takes a girl under 14 from her parents to have carnal intercourse with her individually.
    [Ed. Note. — For other cases, see Abduction, Cent. Dig. §§ 1-10; Dec. Dig. § 1.

    For other definitions, see Words and Phrases, vol. 6, pp. 5740, 5741.]
    2. Abduction (§ 1) — Purpose oe Prostitution — Elements op Oppense.
    The offense denounced by Pen. Code 1911, art. 1060, prohibiting the taking of a girl under 14 from her parents for the purpose of prostituting her, may be committed though accused merely took her from her parents for that purpose without ever having intercourse with her.
    [Ed. Note. — For other cases, see Abduction, Cent. Dig. §§ 1-10; Dec. Dig. § 1.]
    3. Abduction (§ 12) — Purpose op Prostitution — Age—Evidence.
    In a prosecution for abducting a girl under 14 for the purpose -of prostituting her, evidence held insufficient to warrant a finding that she was in fact under 14 at the time of the abduction.
    [Ed. Note. — For other cases, see Abduction, Cent. Dig. § 22; Dec. Dig. § 12.]
    Appeal from District Court, Travis County; Chas. A. Wilcox, Judge.
    Raphael Lopez was convicted of abduction of a girl under 14 for 'the purpose of prostituting her, and he appeals.
    Reversed and remanded.
    S. J. Dotson, of Austin, and H. P. Shead, of Richmond, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPEORi, J.

Defendant was charged with the offense of abduction under article 1060 of the Penal Code in that he did take a girl under 14 years of age from her parents for the purpose of prostituting her.

Defendant earnestly insists that the word “prostitution” used in this article of the Code should be given its broad signification; that is, for the purpose of indiscriminately selling her person to others. This we do not think the intent of the Legislature, but it was intended to make it an offense for a person to take a girl away from her parents for the purpose of having carnal intercourse with her individually; this would be a “prostitution” of the girl.

It is also insisted that if he had intercourse with her this would constitute rape. This may be true, but the indictment in this case does not charge that appellant had intercourse with the girl, but only that he took her away from her parents “with the intent and for the purpose to force her into prostitution,” and the offense of abduction can be committed even though an act of intercourse never took place. The state can charge but once, and if it elects to charge one with the lesser grade of offense, when he could be indicted for either of two offenses, he cannot be heard to complain.

We have carefully read and considered each ground assigned and none of them present error, unless it be that the evidence shows that the girl was not only not under 14 years, but demonstrates affirmatively that she was over that age. Her father swears that she was born April 6, 1899, and if this is true she would be under that age. But on cross-examination he states that at the time of her birth he was living at Millett, Tex.; that he moved from there to Martindale, where he lived for three years, then at Luling three years; that he lived in and around San Antonio one year, and then another year at Martindale, and then went to Louisiana, where he remained five years, and then another year at Martindale, and then to Austin, where he had been four years at the time of the commission of this offense. This would make her 18 years of age. Her mother testified the girl was born in the year “29,” and then says since the girl’s birth they have lived one year at Millett, then at Martindale three or four years, then at Ruling two years, then six months at San Antonio, and then at San Marcos and Mart-indale four or five years, and then in Louisiana one year, and four years in Austin. This would make the girl at least 17 years old at the time the offense was committed. Under the allegations in the indictment and the charge of the court, the girl must have been under 14 years of age or he would not be guilty of the offense with which he was charged.

There is no doubt defendant’s conduct was very reprehensible, but this does not render him guilty of the offense charged against him, and in this case he can only be tried for that offense. To our mind the evidence conclusively shows that the girl was more than 14 years of age at the time she-was carried away by appellant, and by the testimony we must be governed.

It was improper to permit an officer to testify that the girl had the appearance of being under 14 years of age. This officer did not know anything about the date of her birth; he had no intimate association with her and is not shown to have ever seen her before the date of the alleged offense.

'Because the testimony as adduced on this trial would not authorize a finding that the girl was under 14 years of age, the judgment is reversed and cause remanded.


text:
    SANCHEZ et al. v. STATE.
    (Court of Criminal Appeals of Texas.
    April 16, 1913.)
    1. Criminal Law (§ 622) — Severance—Order on Trial — Rights on Defendants Jointly Indicted.
    Persons jointly indicted have the right to a severance and to direct the order of trial on a severance.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1380-1383, 1385, 1386, 1388-1390'; Dec. Dig. § 622.]
    2. Homicide (§ 296) — Assault with Intent to Murder — Evidence—Instructions.
    Where officers, who were strangers to accused and his associates, sought to arrest accused and approached and surrounded his house in the nighttime and began shooting into the house immediately after demanding that accused surrender without intimating the authority for the demand, and the evidence was conflicting as to whether the officers or accused and his associates began the shooting and as to whether the officers had process for the arrest of accused, accused and an associate, on trial for assault with intent to murder an officer, were entitled to instructions on the law of illegal arrest and on the issue as to whether the officers had a warrant of arrest.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 610; Dec. Dig. § 296.]
    3. I-Iomicide (§ 2S8) — Assault with Intent to Murder — Evidence—Instructions.
    A charge on provoking a difficulty was erroneous.
    [Ed. Note. — For other eases, see Homicide, Cent. Dig. § 593; Dec. Dig. § 288.]
    4. Homicide (§ 257) — Assault with Intent to Murder — Evidence.
    Evidence held not to show an assault with intent to murder.
    [Ed. Note. — F'or other cases, see Homicide, Cent. Dig. §§ 543-552; Dec. Dig. § 257.]
    5. I-Iomicide (§ 310) — Assault with Intent to Murder — Aggravated Assault —Instructions.
    Where officers seeking to arrest accused surrounded his house in the nighttime and began shooting into the house immediately on demanding his surrender, without indicating any authority for the demand, accused and his associate, who did not know the officers, were entitled to a charge on aggravated assault on a trial for an assault with intent to murder an officer.
    [Ed. Note. — For other cases, see I-Iomicide, Cent. Dig. §§ 657-661; Dec. Dig. § 310.}
    6. Homicide (§ 310) — Assault with Intent to Murder.
    Where, on a trial for assault with intent to murder, the evidence raised other issues than assault to murder and self-defense, the court should in its instructions limit malice aforethought and assault to murder by the extenuating circumstances proved.
    [Ed. Note. — For other cases, see Homicide, Gent. Dig. §§ 657-661; Dec. Dig. § 310.}
    Appeal from District Court, Hidalgo County; W. B. Hopkins, Judge.
    Luz Sanchez and Francisco Gamboa were convicted of assault with intent to murder, and they appeal.
    Reversed and remanded.
    J. T. Canales and W. J. Dougherty, both of Brownsville, and E. C. Gaines, of Austin, for appellants. C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, P. J.

The indictment charges the two above-named defendants and Avelino Garza Mercado jointly with assault with intent to murder Jesse Perez. When the case was called for trial, motion was made to sever, which was granted as to Mercado. Thereupon the other two defendants, Sanchez and Gamboa, also asked a severance, which was refused by the court. They were placed upon trial and convicted; each being awarded five years in the penitentiary.

Error is assigned upon the ruling of the court refusing the motion to sever as between Sanchez and Gamboa. This was error. These parties had a right to sever, and not only so, but the further right to direct the order of trial on the severance as to which one should be placed on his trial. Teiman v. State, 28 Tex. App. 145, 12 S. W. 742, is directly in point and adjudicates the very question. See, also, Wallace v. State, 48 Tex. Cr. R. 320, 87 S. W. 1041; Brooks v. State, 42 Tex. Cr. R. 350, 60 S. W. 53.

In order to intelligently review some of the questions thought necessary to be decided, a short statement of the case should be made. Appellant Sanchez was charged with horse theft. There was no offense charged against Gamboa so far as the record is concerned. This applies to arrest of appellants at time this particular offense is charged. Either in March or May, which is left in doubt by the testimony of Perez, he was deputy sheriff and as such went to the residence of Sanchez for the purpose of arresting him for the alleged horse theft. Sanchez was not at home, but his wife was. He inquired of her and ascertained that Sanchez was not at home, and went away. He claims to have had process then for the arrest of Sanchez. On the 5th or 6th of June he returned to the home of Sanchez for the purpose of arresting him, stating that he had a capias for his arrest for the horse theft. He also states that he had a warrant for the arrest of Mercado for assault to murder, “but, had no papers for Gamboa or any other person.” Sanchez lived on the Rio Grande near the Ojo de Agua ranch. They went in an auto, stopping some distance beyond the residence of Perez, reaching that point some time after midnight. Just before day they surrounded the house of Sanchez for the purpose of arresting him. Reaching the house of Sanchez about daylight or a little before (the witnesses differ somewhat as to the time of night, some saying that light was just breaking for day and others that it was dark), Perez and his posse surrounded the house of Sanchez. The house had two doors; one entering from the north and one entering from the south. It also had a couple of windows and a little hole in the wall smaller than the window. There were several Mexicans at the house of Sanchez who had spent the night, besides appellants, Victoriano Cantu, Manuel Cantu, Mercado, Mrs. Sanchez, her niece Genoveva Santana, and his little daughter. The women slept in the house and the men on pallets on the south side and outside of the house. When Sirs'. Sanchez opened the north door to pass out to attend a call of nature, seeing the dim outline of men in the brush near the house, started to re-enter, when one of the men, who was secreted nearest the house, prevented her returning. This man seems to have been Perez. When she gave the alarm by calling her husband, this aroused the men on the opposite side of the house, and all, with the exception of one of the Cantus, ran into the house and the .shooting began. The evidence is in direct conflict as to who began the shooting, those in the house or those on the outside. Perez stated that he said, “Surrender,” just as the shooting began, but by none of the testimony is it claimed or intimated that he notified those in the house of his identity or the identity of those with him, or the purpose for which he demanded the surrender; nor was the name of any of the parties mentioned in his demand; nor was it shown or intimated that he mentioned the person accused, or by what authority the surrender was demanded. There were quite a number of shots fired. Finally, after further demand, the parties came out of the house; there being four Mexicans in the house. Upon entering the house they found some shells upon the floor, indicating they had been freshly fired. The two little girls were in the house. One of the Cantus did not enter the house, but fled. He was-killed while running) away from the house.

Mrs. Sanchez testified, contradicting the evidence of Perez to the effect that she had seen him on a previous visit in March or May, whichever occasion was correct; that she had never seen Perez, and he had never been to her house before the occasion of the difficulty; that is the first time she had ever seen him at her house; and that she had never seen him until the shooting. Perez’s testimony to some extent corroborates her in this; that on the trip in June he told Antonio Sandoval to take him to Luz Sanchez’s house; that “he told me that he lived there and I found him there.” The trip in June was the only one on which Sandoval accompanied Perez. There is also a sharply contested issue as to whether Perez in fact had process in his possession on the 6th of June or prior thereto; the 6th of June being the night of the shooting. It is also controverted issue as to whether at that time any process had been in fact issued for the arrest of Sanchez. Bearing upon this on the trial of the case before the jury, the state first offered and identified by Perez a capias issued October 29th, after the difficulty in June, bearing Perez’s official return of the arrest of appellant. He had previously testified in a most positive manner he never held in his possession or made any return on but one capias relating to these matters. After the noon recess of court Perez brought into court another ca-pias dated prior to June 6th, which he then claimed to have found among his private papers at the noon hour. He had previously testified he had never had but one ca-pias, and that was the one on which the return was made. As before stated, Perez and his crowd surrounded the house of Sanchez, and, when Mrs. Sanchez gave notice of the fact that these men were in hiding on the north side of the house, she hol-loed to her husband to look out; they were going to kill- him. Perez testified that she holloed,.“Luz! Luz! Luz!” three times. Upon whatever exclamation she did make, the men who were sleeping outside on pallets, except Oantu, who was killed while he was fleeing, ran into the house. The evidence is positive for the state that the first shot was fired from the inside of the house, while that for the appellants is as positive it was fired by the officers on the north side of the house where Mrs. Sanchez was. Perez, the alleged assaulted party, was on that side of the house.

The court did not charge upon the issue of arrest and the law applicable to Illegal arrest in any of its aspects. This is assigned as error in a timely and sufficiently legal manner both in the trial court and in this court. The question of an attempted illegal arrest is fully raised by this record under the evidence. It is not claimed the officers notified the defendant or any of the parties as to who they were or what was their mission. They approached the defendant’s house in the nighttime. There is some testimony to the effect that appellant Sanchez may have been mixed up with the border troubles. In one place Perez says one time Sanchez had 17 men with him. At the time of this difficulty all parties were armed with 30-30 rifles and implements of destructive warfare! These were strangers approaching appellant’s house at night and surrounding it, armed and shooting into his house, with no notification as to who they were except a demand that they “surrender.” The evidence also, as before stated, is in direct conflict as to who began the shooting, it being equally positive both ways; but there is no question of the fact that these armed men, strangers to appellant, approached his house and surrounded it at night. Why the different phases of the law pertaining to illegal arrest was not charged in this case we do not understand, for, under- all the authorities, it is a self-evident proposition. See Montgomery v. State, 43 Tex. Cr. R. 306, 65 S. W. 537, 55 L. R. A. 710, Cortez v. State, 43 Tex. Cr. R. 375, 66 S. W. 453, Cortez v. State, 44 Tex. Cr. R. 169, 69 S. W. 536, Earles v. State, 52 Tex. Cr. R. 148, 106 S. W. 138, Branch’s Crim. Law, §§ 437, 438, and 439, for many cases and tersely stated propositions supported by the cited cases. We do not think it would serve any useful purpose to go over and state the different rules applicable to the attempted illegal arrest in its different phases as applicable to the evidence adduced on the trial. There was an issue as to whether Perez had a warrant for the arrest of appellants. This phase of the law should have been charged. It was an illegal and reckless manner in which the arrest was sought to be made. There was an approach of strangers to appellant’s house, surrounding if at night, demanding a surrender without giving a reason for it, as even viewed from the state’s testimony, without even notifying th,em they were officers or their mission for being around his house at that peculiar hour of the night. These matters will suggest themselves to the trial court upon a review of the authorities. Appellants’ legal rights and legal status .with reference to this matter, as well as the attitude of the officers under the circumstances detailed by both sides, should be carefully noticed in the instructions of the court to the jury.

Without recapitulating the evidence, we hold that the court erred in giving a charge on provoking a difficulty. How it could be held that appellant provoked the difficulty in this case is not to be ascertained from the facts. He was asleep when the strangers surrounded his house at night. He ran into the house, and, if the state’s theory is correct, began shooting at his supposed armed enemies under those circumstances. If the officers fired first, of course he did not provoke the. difficulty from that standpoint. If he fired first, this was not a provocation of the difficulty. Under no authority that has been called to our attention can it be held that the issue of provoking a difficulty was in this case. We hardly deem it necessary to cite authorities on this' issue, ' but would refer to Branch’s Crim. Law, § 467; McCandless v. State, 42 Tex. Cr. R. 58, 57 S. W. 672; Bearden v. State, 46 Tex. Cr. R. 144, 79 S. W. 37.

It is also contended that the evidence is not sufficient to support a conviction against Gamboa. The contention is that there is no evidence against Gamboa that he participated in the difficulty in any way, and further that the testimony, without contradiction, shows that he not only did not participate in the difficulty but secreted and hid himself under a bed to avoid being shot by the parties outside. The evidence is uncon-troverted in this record, as we understand it, that, immediately upon Gamboa entering the house, he crawled under the bed and remained under it until after the shooting. This is shown by all the evidence bearing on the question.

It is also contended that Sanchez is not guilty under the evidence of assault to murder. The writer believes this proposition is correct. No testimony in the cas'e shows that any shots were fired until he was awakened by his wife notifying him that they were going to kill him. He then ran in the house, secured his gun, and shot. The state’s case is appellant fired first. The defendant’s case is the officers fired first. But, if we take the state’s side of the case, we do not believe this testimony makes a case of assault to murder. And the writer would go further and state that, under the state’s evidence, Sanchez ought not to have been convicted. How a man could be sent to the penitentiary under the circumstances detailed in this case for resisting and fighting unknown parties (men surrounding his house at night armed with rifles and deadly arms, and shooting at him) I do not understand. To send a man to the penitentiary under those circumstances would deny him the right of defending not only himself but his house, his castle, in which was his wife, little daughter, and niece.

If the case should be tried again in connection with the facts and the attempted arrest, a charge on aggravated assault should be given. This testimony certainly demands a charge on aggravated assault, if it demanded any sort of charge as a predicate for conviction. The attempted illegal arrest, the manner of surrounding tlie house, and all the attendant circumstances were such as to place any reasonable mind in such condition that it would be absolutely incapable of cool reflection.

The charge submitting the issue of assault to murder, while not specifically complained of, is erroneous. This is mentioned in view of another trial so a proper charge on this matter may be given. It reads as follows: “If, from the evidence, you are satisfied, beyond a reasonable doubt that the defendants, Luz Sanchez and Francisco Gamboa, or either of them, on or about the time charged in the indictment in the county of Hidalgo and state of Texas, with a deadly weapon, and with malice aforethought, did assault the said Jesse Perez with intent then and there to kill and murder him by the means charged in the indictment, and if you are further satisfied by the evidence, beyond a reasonable doubt, that said assault was not made in defense of himself or themselves against an unlawful attack producing a reasonable expectation or fear of death or serious bodily injury, then you will find the defendants or either of them guilty of an assault with intent to murder, and so say by your verdict,” etc. The court then charges the law of principals and the law of self-defense. Nowhere in connection with malice aforethought or assault to murder does the court instruct the jury with reference to any mitigating or extenuating circumstances. We have said enough already with reference to the facts and circumstances to show that there were other issues in the case besides assault to murder and self-defense, and the court should have instructed the jury in connection with this phase of the law and limited malice aforethought and assault to murder by these extenuating circumstances. There were facts in the case growing out of the issues of illegal arrest and connecting circumstances that extenuated this difficulty, even if appellant was in the wrong. The jury gave them five years each. This is three years in excess of the minimum punishment of assault to murder.

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


author: PRENDERGAST, J..

text:
    HOOPER v. STATE.
    (Court of Criminal Appeals of Texas.
    April 23, 1913.)
    Cbiminal Law (§ 1090) — Appeal—Bills os’ Exception — Statement op Facts — Necessity.
    On appeal in a criminal ease, where the indictment, charge, judgment, and sentence were in proper form, there were no questions open for consideration, in the absence of a bill of exceptions or statement of facts.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    Appeal from District Court, Angelina County; L. D. Guinn, Special Judge.
    Sam Hooper was convicted of unlawfully selling intoxicating liquors, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, J..

Appellant was convicted for unlawfully selling intoxicating liquors in Angelina county after prohibition had been put in effect in said county, since the enactment making such sale a felony, and his punishment fixed at three years in the penitentiary.

There is neither a bill of exception nor a statement of facts in this case. No question is raised which we can consider without a statement of facts. The indictment, charge, judgment of conviction, and sentence are in proper form.

The judgment is therefore affirmed.


text:
    HOOPER v. STATE.
    (Court of Criminal Appeals of Texas.
    April 23, 1913.)
    Criminal Law (§ 1090*) — Appeai^-Bills op Exception — Statement op Facts — Necessity.
    The matters presented as grounds for a new trial in a criminal case could not be reviewed or revised, where the record contained neither a statement of facts nor a bill of exceptions.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.*]
    Appeal from District Court, Angelina County; L. D. Guinn, Special Judge.
    Sam Hooper was convicted of violating the local option law, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of violating the local option law; his punishment being assessed at two years’ confinement in the penitentiary.

This record is before us without a statement of facts or bills of exception. The matters presented by the motion for new trial, with the record in this condition, cannot be reviewed or revised.

The judgment is affirm.ed.


text:
    JAYNES v. STATE.
    (Court of Criminal Appeals of Texas.
    April 23, 1913.)
    Criminal Law (§ 1090*) — Appeal—Necessity op Bill op Exceptions.
    Where the record contains no statement of facts or bills of exceptions, no question raised in the motion for a new trial is reviewable.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.*]

      Appeal from District Court, Angelina County; L. C. Guinn, Special Judge.
    H. C. Jaynes was convicted of a violation of tlie local option law, and lie appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for tlie State.
   HARPER, J.

This is an appeal prosecuted from a conviction for violating tlie local option law. As the record contains no bills of exception, and no statement of facts accompanies it, there is no question raised in the motion for a new trial we can review.

The judgment is affirmed.


text:
    JAYNES v. STATE.
    (Court of Criminal Appeals of Texas.
    April 23, 1913.)
    Appeal from District Court, Angelina County; L. D. Guinn, Special Judge.
    H. C. Jaynes was convicted of violating the local option law, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of violating the local option law.

The record is before us without a statement of facts or bills of exception. Some matters are set forth in the motion for new trial, but these cannot be considered in the absence of the evidence.

The judgment is affirmed.


text:
    SHORNWEBER v. STATE.
    (Court of Criminal Appeals of Texas.
    April 16, 1913.
    On Motion for Rehearing, May 7, 1913.)
    1.Criminal Law <§ 1090) — Appeal-Necessity on? Bills of Exception.
    Alleged objectionable and injurious remarks of the district attorney could not be reviewed where they were not verified in any manner or perpetuated by bills of exception.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789. 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    On Motion for Rehearing.
    2. Burglary (§ 4) — Character of Building —“Private Residence.”
    A jewelry store in which was a little gallery about 10 feet above the floor curtained off as a sleeping apartment, with a railing around the gallery next to the store part, but without any partition, was not a “private residence” within the statute, which makes a distinction between ordinary burglary and the offense of breaking into a private residence.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 14-18; Dec. Dig. § 4.

    For other definitions, see Words and Phrases, vol. 6, p. 5578.)
    3. Criminal Law (§ 1172) — Review—Instructions — General Submission of Daytime and Nighttime Burglary.
    Where an indictment in one count charged a daytime burglary and in another a nighttime burglary, and there was evidence sufficient to support a conviction under the second count, but not under the first, an instruction submitting generally, the question whether accused broke and entered the house, without reference to either a daytime or nighttime burglary, was not erroneous, since the verdict being general the conviction would be imputed to the count sustained by the facts.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3128, 3154-3157, 3159-3163, 3169; Dec. Dig. 1 1172.]
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    H. L. Shornweber was convicted of burglary, and he appeals.
    Affirmed.
    J. M. Gibson and W. W. Wander, both of Houston, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, P. J.

Appellant was convicted of burglary; his punishment being assessed at 12 years’ confinement in the penitentiary.

There are two propositions in the motion for new trial — first, the undisputed evidence shows that the house burglarized was a private residence; and, second, the district attorney used remarks during his argument which were objectionable and injurious. To the second ground it may be stated that these matters are not verified in any manner or perpetuated by bill of exceptions, and therefore cannot be considered. To the first ground it may be replied we are of opinion that the evidence does not show burglary of a private residence. The indictment contains two counts in the ordinary form charging burglary at night and in daytime. Nowhere in either of these counts is it undertaken to charge that the house burglarized was a private residence. The theory upon which this contention is made is that in one part of the house the alleged owner had a room in which he slept. The burglarized house was a jewelry establishment, one of the front windows being broken by a rock and the jewelry taken through this aperture. The alleged owner slept in a different part of the house from that occupied as the jewelry establishment. The alleged injured party slept in another part of it on a little gallery between the lower floor and the roof, elevated about 10 feet from the floor. This will not constitute the store a private residence within the meaning of the statute. This matter was discussed in Alinis v. State, 63 Tex. Cr. R. 272, 139 S. W. 980, and same style of case page 371 of same volume.

There are other questions suggested in the brief, but are not presented by bill or motion in the record. They are suggested here for the first «time. Under tbe ruling of this court, these matters cannot be reviewed.

As the record is presented, the judgment is ordered to be affirmed.

On Motion for Rehearing.

This case was affirmed at a former day of the term, and appellant has filed a motion for rehearing. Quoting his first groiind he says: “The court erred in this finding of facts in statement of opinion: ‘The indictment contains two counts in the ordinary form charging burglary at night and in daytime. Nowhere in either of these counts is it undertaken to charge that the house burglarized was a private residence.’ The court failed evidently to read appellant’s brief where the second count of indictment was copied and italicized for court’s convenience.” This is a literal copy of that portion of appellant’s motion for rehearing. In appellant’s brief filed with the original submission of the case there is set out a copy of what purports to he the second count in the indictment. He again copies the same count in his motion for rehearing verbatim as in his original brief that portion of which is here copied from appellant’s 'motion for rehearing: “We again copy the second count of indictment which reads as follows: Nighttime burglary of a private residence: And the grand jurors aforesaid upon their oath in said court further present: That H. L. Shornweber, late of the county aforesaid, on or about the 19th day of the month of July, in the year of Our Lord one thousand nine hundred and twelve, in said county of Harris, in the state of Texas, with force and arms, then and there in the nighttime, a certain house there situate, ‘then and there occupied and controlled by E. T. Wilton, said house being then and there occupied' and actually used by the said E. T. Wilton as a place of residence’ fraudulently and bur-glariously, by force, threats, and fraud, did break and enter, with the intent then and there the corporeal personal property of value of and belonging to said E. T. Wilton then and there being found,” etc. It is unnecessary to quote the remaining part of the count which is found in the motion for rehearing, as it has no relation to the matter at issue, the point being made that the second count does charge a nighttime burglary of a private residence, and appellant gives what he says is a literal copy of the second count in the indictment. Appellant is correct in his quotation from the original opinion. The court still adheres to its original opin ion, and believes the record justifies that opinion in making the statement that was made and that appellant does not correctly copy the second count. The indictment contained in the transcript two counts — 'the first charges the ordinary daytime burglary; the second, omitting the formal parts and getting down to that which is necessary to be noticed in this case, reads as follows: “Then and there in the nighttime a certain house there situate, then and there occupied and controlled by E. T. Wilton, feloniously, fraudulently, and burglariously, by force, threats, and fraud, did break and enter, with the intent then and there to commit the crime of theft, and with the intent then and there the corporeal personal property of value of and belonging to said E. T. Wilton, then and there being found in said house, feloniously and fraudulently to steal, take, and carry away from and out of said house,” etc. This quotation is from the second count in the indictment, and does not coincide with that copied by appellant in his brief. There is no contention on the part of appellant that the indictment is incorrectly copied in the transcript. We are still of the opinion that the court’s former opinion is correct with reference to the allegations in the second count in the indictment. The second count as found stated in the original brief as well as in the motion for rehearing by appellant is not the same as that in the transcript on file in this court. Therefore, those matters with reference to the charge of the court in connection with a private residence are not applicable, because there was no allegation that a private residence was burglarized. It is unnecessary to further notice this part of the motion.

It is contended that the evidence shows the house burglarized is a private residence. We cannot concur with counsel on this proposition. The evidence shows that the house burglarized was a jewelry establishment, and was broken as set out in the original opinion by breaking a window and taking the goods through the aperture thus made. Appellant cites us to the testimony which he contends shows that the entire jewelry building should be classed as a private residence. The facts in this connection are more strongly found in the .following language than any other portion of the statement of facts; in fact, it is practically all the testimony in this connection (copied from the testimony of the alleged owner, Wilton): “I do not occupy and control the whole building, all the lower part, and I built a little gallery like you have got this gallery in the same floor, only a kind of little gallery upstairs; I sleep in that little gallery right in the store, between the roof and lower floor. I sleep in the room downstairs; it is elevated about 10 feet from the floor; it is a second little gallery like this gallery here, right in the store. I use the lower floor which the window is a part as a store, and this little gallery. I keep some more stock up there that we have not got room downstairs for. This little gallery is not partitioned off from the rest of the store, a railing just so people coming in the store wouldn’t see the cot there, and I have got a curtain that runs from one end to the other.” This little gallery sleeping apartment, under the evidence, is about 10 feet above the lower floor, as we gather from this evidence, curtained off as his sleeping apartment with a railing around the gallery next to the store part. The fact that Wilton slept in this little gallery, as above described, would not make the entire store — ■ the business part of the store — his private residence. In addition to the Alinis Case, cited in the original opinion, we cite Jame v. State, 63 Tex. Cr. R. 559, 140 S. W. 1086; Anderson v. State, 17 Tex. App. 305. See, also, for authorities Branch’s Orim. Law, §§ 165, 166. If the indictment contained the allegations as set forth in appellant’s motion for rehearing as well as those copied in his original brief, there might be a right serious question both on the charge of the court and the variance between the testimony and the allegations in the indictment. The court did not submit the issue of breaking into a private residence; he submitted the proposition generally, if appellant broke and entered the house he would be guilty. The ordinary burglary is a different offense from that of breaking into a private residence, under the statute, and requires different allegations and different evidence to support it, and, of course, would necessarily require an application of the .law to the facts in charging the jury.

It is also contended the court erred in submitting a daytime burglary. The court did not submit directly a daytime burglary; but submitted generally, if appellant broke and entered the house by force, he would be guilty. As the matter is presented' by this record, that question is of no practical value, and could not be to appellant we think. Where there are two counts and both submitted and both good on their face, the verdict being general, a conviction would be imputed to the count sustained by the facts, provided that count was included in the court’s charge. The court did not specifically charge with reference to either a day or night time burglary, but submitted the question generally. The evidence does not support a daylight breaking, but it does support a nighttime breaking or burglary. Under the decisions, we are of the opinion there is no merit in this question as presented by this record. We are discussing the indictment as it is found in the record, and not as found in the brief and motion of appellant. As the matter is presented, there is no reason why the judgment of affirmance should be set aside.

The motion for rehearing is therefore overruled.