author: HARPER, C. J.

text:
    BOWINGTON v. WILLIAMS et al.
    (No. 329.)
    (Court of Civil Appeals of Texas. El Paso.
    April 30, 1914.)
    1. Frauds, Statute of (§ 60) — Creation of Easement.
    A perpetual easement in land liable to be divested only if the use of the dominent tenement be changed must be created by deed; a parol license being insufficient.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 83, 94, 95; Dec. Dig. § 60.]
    2. Easements (§ 61) — Pleading—Proof.
    A party claiming an easement against the owner of the fee is bound to plead and prove it.
    [Ed. Note. — For other cases, see Easements, Cent. Dig. §§ 102, 130-144, 148; Dec. Dig. § 61.]
    3. Easements (§§ 1, 18) — Acquisition — Mode.
    An easement over the land of another may be acquired when it is necessary for an outlet to the county road, or by verbal agreement in the nature of estoppel.
    [Ed. Note. — For other cases, see Easements, Cent. Dig. §§ 1, 2, 5-7, 50-55; Dec. Dig. §§ 1, 18.]
    4. Easements (§ 61) — Easements oe Necessity — Peksons Entitled to Claim.
    The way of necessity reserved to a vendor who sells land surrounding other land which he retains, and to which he can have access only through the granted premises, cannot be asserted by the vendor for the benefit of subsequent grantees to whom he sold the inaccessible tract.
    [Ed. Note. — For other cases, see Easements, Cent. Dig. §§ 102, 130-144, 148; Dec. Dig. § 61.]
    5. Frauds, Statute op (§ 139) — Parol Gbant of Easement — Eppect.
    Where a parol grant of a way has been acted upon by the expenditure of moneys which would be lost if the right of way be revoked, an easement arises by estoppel.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 334-341; Dec. Dig. § 139.]
    6. Easements (§ 35) — Actions—Pleading— Sufficiency.
    A pleading that defendant acquired a way by parol agreement upon the conveyance to plaintiff of the land over which he asserted it is not good as a plea of an easement by estoppel, because alleging no fact showing the injustice of a revocation of the way.
    [Ed. Note. — For other cases, see Easements, Dec. Dig. § 35.]
    7. Easements (§ 61) — Reservation—Epfect.
    Where an owner of land verbally reserved a way over the land conveyed so as to have access to a parcel retained, the right is personal to him, and cannot inure to the benefit of subsequent grantees to whom he conveyed his remaining parcel.
    [Ed. Note. — For other eases, see Easements, Cent. Dig. §§ 102, 130-144, 148; Dee. Dig. § 61.]
    Error to District Court, El Paso County; A. M. Walthall, Judge.
    Trespass to try title by K. N. Bowington against H. H. Williams and W. H. Strahan, who cross-complained. There was a judgment for plaintiff against the first-named defendant, and for W. H. Strahan on his cross-complaint, and plaintiff brings error.
    Reversed and remanded.
    U. S. Goen, of El Paso, for plaintiff in error. McBroom & Scott and Maury Kemp, all of El Paso, for defendants in error.

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

   HARPER, C. J.

This suit was instituted March 8, 1912, by plaintiff in error, K. N. Bowington, against H. H. Williams and W. H. Strahan, defendants in error, in trespass to try title and for damages; plaintiff alleging that his right to the use of the 14-foot roadway across the westerly part of lot 1, block C, San Elizario Grant, El Paso county, Tex., which had been conveyed by Williams to Strahan by deed, dated April 5, 1911, and by Strahan- to plaintiff in error by deed, dated June 5, 1911, was being interfered with, and that he had been dispossessed of a ’portion thereof by defendant Williams. Plaintiff asked that his title to said strip of land be quieted, and also prayed for an injunction restraining defendant Williams from further interfering with his use and enjoyment of said roadway. Defendants Williams and Strahan, in their original answers, demurred generally, and specially denied the allegations of plaintiff’s petition.

On August 19, 1912, defendant Strahan filed an amended answer, in which he admitted that he had bought of defendant Williams the 14-foot strip of land sued for, and had sold an undivided one-half interest therein to plaintiff in error, and by way of cross-action alleged that on June 5, 1911, he conveyed by warranty deed a 15-foot strip of land off the western side of lot 2, block C, San Elizario Grant, which strip connected with the southerly end of the roadway obtained from Williams; that, after the sale of said 15-foot strip to plaintiff, he had no outlet to the county road over the 14-foot roadway save by crossing over the northerly 30 feet of said 15-foot strip, and that it was necessary that he and his assigns have an easement over said strip of land that he might have an outlet from lot 2 of block C to the county road; that while he gave to plaintiff a warranty deed to said 15-foot strip, yet part of the consideration was a verbal agreement that he have an easement over the northerly 30 feet thereof; that since the filing of this suit, and prior to the filing of his cross-action, he had sold and assigned said lot 2 of block O, together with his inter■est in .said-roadway,'to Lamar Davis and Aris T. Celum, with an agreement to have their rights to an easement in said 30 feet .adjudicated in this suit; he therefore asked for a judgment, declaring an easement to said northerly 30 feet of said strip to him and his assigns, and for an injunction restraining plaintiff in error from fencing up same, or - interfering with his enjoyment thereof.

To defendant Strahan’s amended answer and cross-action, plaintiff demurred generally, and specially excepted to that part of said cross-action asserting an easement in the northerly 30 feet of said 15-foot strip by virtue of verbal agreement between grantor and grantee on the ground that such an easement could not be created except by deed. The demurrers were overruled, and, said cause coming on for trial on November 19, 1912, before the court without a jury, a judgment was rendered in favor of plaintiff in error for title and possession of said 14-foot roadway, together with a permanent injunction restraining defendant Williams from further interfering with plaintiff’s right or ■enjoyment in said roadway. Judgment was also rendered in favor of Strahan on his cross-action against plaintiff in error giving to said Strahan and his assigns an easement and permanent roadway over the northerly 30 feet of the 15-foot strip off the westerly side of lot 2, block C, San Elizario Grant, ■and plaintiff in error was permanently enjoined from fencing same, or interfering with the use thereof by defendant Strahan or his assigns.

Plaintiff in due time filed a motion for a new trial, which was, on December 27, 1912, in all things overruled, to which ruling plaintiff duly excepted. Thereafter, on October 31, 1913, plaintiff in error filed his petition and bond, citation was duly issued, and said cause is now before this honorable court for review.

The appellant, in five assignments of error, raises by general and special exceptions that defendant cannot establish an easement upon land by parol. By his third assignment he charges that the court erred in admitting parol testimony as to the easement claimed, and by the fourth that, because there was no necessity in legal contemplation for an easement over premises sued for, therefore the court erred in his conclusion of law and fact, and in rendering judgment for an easement; and his fifth assignment, submitted as a proposition, reads as follows: “The court erred in rendering judgment for defendant Strahan giving him an easement in the property sued for, as it was shown by his first amended original answer and cross-action that he had parted with his interest in said land, and said right of use, if any, not being created by deed, and, if anything, nothing more than a license, was personal to himself, and could not pass to his assigns, and therefore he was not entitled to the relief prayed for, and for which the court gave judgment; said error being specified in paragraph 1 of plaintiff’s motion for a new trial.”

A perpetual easement in land liable to be divested only if the estate should be used for other purposes than those contemplated by the parties can only be created by deed; a parol license being insufficient for the purpose. Texas W. Ry. Co. v. Wilson, 83 Tex. 154, 18 S. W. 325; T. & P. Ry. Co. v. Durrett, 57 Tex. 48. See 6 Michie’s Dig. p. 782, for other authorities.

Where a party claims an easement as against the owner of the fee, it is incumbent upon him to plead and prove it. Texas W. Ry. Co. v. Wilson, 83 Tex. 154, 18 S. W. 325. There are several ways by which a person may acquire the right to an easement over the lands of another, and the appellee asserts the right (a) by necessity, i. e., that it was necessary for him to have a right of way over appellant’s premises as an outlet to the county road; (b) by verbal agreement in the nature of an estoppel.

The former applies when a vendor sells land to another to which the former can only have access through the granted premises. Alley v. Carleton, 29 Tex. 74, 94 Am. Dec. 260; Howell v. Estes, 71 Tex. 690, 12 S. W. 62; Sellers v. Texas Cent. Ry. Co., 81 Tex. 458, 17 S. W. 32, 13 L. R. A. 657; Sassman v. Collins, 53 Tex. Civ. App. 71, 115 S. W. 337. And the latter arises when the owner of land by parol agreement gives a right of way over it which has been acted upon by expending moneys, etc., which would be lost if the right to enjoy the easement could be revoked. Harrison v. Boring, 44 Tex. 255. Since there is no pleading by appellee that he acquired the easement by an estoppel, except that he plead parol agreement, he falls far short of the burden placed upon him by the rule requiring him to plead his easement. Texas Western Ry. Co. v. Wilson, supra. And since the appellee cannot claim his easement under the rule of necessity (Alley v. Carleton, 29 Tex. 74, 94 Am. Dec. 260) by reason of the fact that he no longer owns it, the general demurrer should have been sustained.

In view of another trial, it may be well to pass upon appellee’s counter ’ proposition that he is entitled to prove that the easement was a part of the consideration in the deed between the parties. If he were still the owner of the premises (sold to Davis and Celum), he would be entitled to it under proper showing; but it was personal to him, and could not inure to the benefit of his vendees. Besides, such considerations are confined to the parties to the instrument (Taylor v. Merrill, 64 Tex. 496), and such written contracts should speak for themselves (Sellers v. T. C. Ry. Co., 81 Tex. 458, 17 S. W. 32, 13 L. R. A. 657).

Eor the reason given, the cause is reversed and remanded for a new trial.


source: Caselaw Access Project

author: . PRENDERGAST, P. J.

license: Public Domain

text:
    HERRINGTON v. STATE.
    (No. 2989.)
    (Court of Criminal Appeals of Texas.
    April 15, 1914.
    Rehearing Denied May 13, 1914.)
    1. Physicians and Surgeons (§ 2) — Regulation of Practice — Statutes—Validity.
    Acts 30th Leg. c. 123, prohibiting the practice of medicine without a proper certificate, is valid.
    [Ed. Note. — For other cases, see Physicians and Surgeons, Cent. Dig. § 2; Dec. Dig. § 2.]
    2. Indictment and Information (§ 125)— Statutory Offenses — Sefabate Offenses.
    A complaint and information, which charge conjunctively the offenses denounced by Pen. Code 1911, art. 755, punishing the practicing of medicine by one publicly professing to be a physician and surgeon or by one offering to treat any disease by any system, do not charge separate and distinct offenses.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 334r-400; Dec. Dig. § 125.]
    3. Indictment and Information (§ 125)— Requisites — Surplusage.
    Where a complaint and information distinctly charge the offense of treating or offering to treat any disease by any method in violation of Pen. Code 1911, art. 755, subd. 2, the allegations in the complaint and information attempting to charge accused with professing to be a physician or surgeon in violation of subdivision 1 will be treated as surplusage, and thereby render the complaint and information good as against the objection that separate and distinct offenses are charged.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 334-400: Dec. Dig. § 125.]
    4. Cbiminal Law (§ 829) — INSTRUCTIONS — Instructions Covered by the Charge Given.
    Where the issues raised were correctly submitted by the court in the charges given, it was not error to refuse special charges requested'by accused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.]
    5. Criminal Law (§ 830) — Instructions — Requests.
    Where the evidence suggests a defense, the court may refuse to give accused a special charge on the subject where it does not correctly state the law.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2012, 2017; Dec. Dig. " 830.]
    Appeal from Bexar County Court; J. R. Davis, Judge.
    Lon H. Herrington was convicted of unlawfully practicing medicine, and he appeals.
    Affirmed.
    Swearingen & Ward, of San Antonio, and Morris & Hartwell, of La Crosse, Wis., 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

   . PRENDERGAST, P. J.

Appellant was convicted for unlawfully practicing medicine, and his punishment assessed at a fine of $150 and one day in jail.

The conviction was had under the Acts of 1907, p. 225. The articles of that act, embraced in our Penal Code, are 750 to 756, inclusive. The other sections of the act are in our Revised Civil Statutes.

Appellant contests the constitutionality of said act and the validity of the complaint and information in this case on many grounds — unnecessary to here state them. The constitutionality of the act has so many times been sustained by so many decisions of this court and also by the Supreme Court of the United States in Collins v. State, 223 U. S. 288, 32 Sup. Ct. 286, 56 L. Ed. 439, that we deem it unnecessary to discuss the questions again. Most of these cases by this court are collated by appellant in his brief. The complaint and information are in substantial compliance with the statute and follow the forms that have heretofore, in all the eases where raised, been held sufficient.

The complaint and information do not charge two separate and distinct offenses as claimed by appellant. It charges the same offense conjunctively, as denounced by article 755. Judge White, in section 405, p. 297, in his Ann. C. C. P., collates some of the authorities and therein from them states the correct rule as follows: “ ‘Where several ways are set forth in the same statute by which an offense may be committed and all are embraced in the same definition and made punishable in the same manner, they are not distinct offenses and they may be charged conjuctively in the same count.’ See Phillips v. State, 29 Tex. 233; Lancaster v. State, 43 Tex. 519; Berliner v. State, 6 Tex. App. 182; Copping v. State, 7 Tex. App. 61; Day v. State, 14 Tex. App. 26; Nicholas v. State, 23 Tex. App. 317, 5 S. W. 239; Davis v. State, 23 Tex. App. 637, 5 S. W. 149; Comer v. State, 26 Tex. App. 509, 10 S. W. 106; Howell v. State, 29 Tex. App. 592, 16 S. W. 533; Laroe v. State, 30 Tex. App. 374, 17 S. W. 934; Willis v. State, 34 Tex. Cr. R. 148, 29 S. W. 787; Brown v. State, 38 Tex. Cr. R. 597, 44 S. W. 176; Moore v. State, 37 Tex. Cr. R. 552, 40 S. W. 287; State v. Smith, 24 Tex. 285; State v. Edmondson, 43 Tex. 162. See, also, section 383, p. 286, White’s C. C. P. Mr. Bishop, in volume 1, § 434, of his New Criminal Procedure, says: ‘Some single offenses are of a nature to be committed by many means, or in one or another of several varying ways. Thereupon a count is not double which charges as many means as the pleader chooses, if not repugnant; and, at the trial, it will be established by proof of its commission by any one of them.’ Again, in section 436, he says: ‘A statute often makes punishable the doing of one thing, or another, sometimes thus specifying a considerable number of things.’ Then by proper and ordinary construction a person who in one transaction does all violates the statute but once, and incurs only one penalty. Yet he violates it equally by doing one of the things. Therefore the indictment on such a statute may allege in a single count that the defendant did as .many of the forbidden things as the pleader chooses, employing the conjunction ‘and’ where the statute has ‘or,’ and it will not be double, and it will be established at the trial by proof of any one of them.”

But even if it could be held that article 755 prescribed two separate and distinct offenses, then in the complaint and information herein all that part which charges the first alternative of said statute could and should be regarded as surplusage, as the remainder clearly and distinctly charges an offense under the second clause of said article. See Mayo v. State, 7 Tex. App. 342; Gordon v. State, 2 Tex. App. 154; Burke v. State, 5 Tex. App. 74; Hampton v. State, 5 Tex. App. 463; Smith v. State, 7 Tex. App. 382; Rivers v. State, 10 Tex. App. 177; Gibson v. State, 17 Tex. App. 574; Holden v. State, 18 Tex. App. 275; Moore v. State, 20 Tex. App. 275; McConnell v. State, 22 Tex. App. 354, 3 S. W. 699, 58 Am. Rep. 647; Osborne v. State, 24 Tex. App. 398, 6 S. W. 536; Cudd v. State, 28 Tex. App. 124, 12 S. W. 1010; Watson v. State, 28 Tex. App. 34, 12 S. W. 404; McLaurine v. State, 28 Tex. App. 530, 13 S. W. 992; Finney v. State, 29 Tex. App. 184, 15 S. W. 175; Hammons v. State, 29 Tex. App. 445, 16 S. W. 99; Taylor v. State, 29 Tex. App. 466, 16 S. W. 302; Waters v. State, 30 Tex. App. 284, 17 S. W. 411; McDaniel v. State, 32 Tex. Cr. R. 16, 21 S. W. 684, 23 S. W. 989; Loggins v. State, 32 Tex. Cr. R. 358, 24 S. W. 408; Lassiter v. State, 35 Tex. Cr. R. 540, 34 S. W. 751; Williams v. State, 35 Tex. Cr. R. 391, 33 S. W. 1080; Webb v. State, 36 Tex. Cr. R. 41, 35 S. W. 380; Mathews v. State, 39 Tex. Cr. R. 553, 47 S. W. 647, 48 S. W. 189; Jordan v. State, 37 Tex. Cr. R. 222, 38 S. W. 780, 39 S. W. 110. And especially should this be done as the court in the charge submitted solely the allegations under the said second clause of said statute. It seems the judge of the court himself prepared no charge as he was authorized not to do under the statute (article 739, C. C. P.), but the only charges he gave were those asked by the state’s attorney and by the appellant.

The court committed no error in refusing to give the special charges requested by appellant which he did refuse. All issues properly raised were correctly submitted by the court in the said special charges given by him.

The evidence did not raise, so as to require a submission, the question that the appellant was only a masseur in that sphere of labor, who publicly represented himself as such. If it could be held that the evidence even suggested that issue, the court correctly refused to give appellant’s special charge on that subject, because it did not correctly charge the law. Hobbs v. State, 7 Tex. App. 118; Lawrence v. State, 20 Tex. App. 536; Sparks v. State, 23 Tex. App. 448, 5 S. W. 135; Mealer v. State, 145 S. W. 354.

The state’s witness, Miss Spangler, or Robinson, was not an accomplice, and the court did not err in refusing appellant’s special charge so telling the jury and requiring her testimony to be corroborated. 1 Whart. Grim.. Ev. (10th Ed.) § 440; 4 Enc.'of Ev. p. 630; Underhill’s Grim. Ev. (2d Ed.) § 69; 12 Cyc. p. 447; Allison v. State, 14 Tex. App. 126; Chitister v. State, 33 Tex. Cr. R. 638, 28 S. W. 683; Holmes v. State, 156 S. W. 1174; Ausbrook v. State, 156 S. W. 1177; Bush v. State, 151 S. W. 556; Minter v. State, 159 S. W. 300.

The evidence was uneontradieted and was clearly sufficient to show appellant’s guilt-There is no other question raised necessary to be discussed or decided.

The judgment is affirmed.


author: HARPER, J.

text:
    MARSHALL v. STATE.
    (No. 3091.)
    (Court of Criminal Appeals of Texas.
    April 15, 1914.
    Rehearing Denied May 13, 1914.)
    Criminal Law (§ 189) — Former Jeopardy-Elements.
    One who obtains on habeas corpus his discharge under a judgment and sentence adjudged absolutely void cannot, on a subsequent prosecution for the same offense, rely on the judgment and sentence in support of a plea of former jeopardy, whether he has undergone any part of the punishment imposed or not.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 301, 321, 372-374; Dec. Dig. § 189.]
    Appeal from District Court, Grayson County ; M. H. Garnett, Judge.
    Randell Marshall was convicted of violating the prohibition law, and he appeals.
    Affirmed.
    Spearman Webb and Hamp P. Abney, both of Sherman, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was convicted of violating the prohibition law, and sentenced to one year’s confinement in the penitentiary. The record in this case presents but one question that need be discussed; in fact, in his brief this is the only question presented by appellant. The facts agreed to show that appellant was indicted August 9, 1913; was tried August 18, 1913, in the district court of the Fifty-Ninth district, and the jury returned a verdict stating: “We, the jury, find the defendant guilty as charged in the indictment,” assessing no penalty. Thereafter, the' court entered a judgment on this verdict, and on September 18th sentenced appellant to serve a term in the penitentiary for not less than one nor more than three years. The appellant did not appeal from this judgment and sentence, but two days after sentence was pronounced, on September 15, 1913, he sued out a writ of habeas corpus before the judge of the Fifteenth judicial district, and upon hearing was remanded. From that judgment he appealed 'to this court, and this court, in the case of Ex parte Randell Marshall, 161 S. W. 114, relieved him of said judgment and sentence, holding that they were unauthorized and void, and remanded relator for another trial.

When the case was again called in the Fifty-Ninth district court, appellant entered a plea of former jeopardy, and, while there is a motion to strike it out on the ground that the plea is insufficient, we will not pass on that question, as the matter presented is one of importance, and likely to often arise, and should be definitely settled.

In the first place we will say that, had not the former judgment and sentence been absolutely void, we could have given no relief under the writ of habeas corpus. As said in Church on Habeas Corpus, § 353: “An erroneous sentence rendered by an inferior court having jurisdiction of the person, place, and subject-matter cannot be successfully attacked upon habeas corpus, unless it is so far erroneous as to be absolutely void.” Our own decisions have always followed this rule. Ex parte Japan, 36 Tex. Cr. R. 482, 38 S. W. 43; Ex parte Dickerson, 30 Tex. App. 448, 17 S. W. 1076, and authorities cited. The reason why the sentence and judgment were held void was that the law under which they were rendered and entered was held void, and the court had no authority to enter such judgment and sentence. And a plea of former jeopardy, nor any other plea, cannot be based upon void judgments.

In Bishop’s Orim. Proe. § 1005 (3d Ed.), it is said: “The test is that if the verdict sufficiently finds anything, whether for or against the defendant, judgment will be rendered on the one side or the other for what is thus found; otherwise the work of the jury will be treated as null, the judgment if entered will be arrested, and the defendant- may be tried anew” — citing authorities. And this is the rule adopted in this court in the case of Dubose v. State, 13 Tex. App. 424, wherein Judge White quoted the above excerpt, and said: “His first trial resulted in the following verdict rendered by the jury, viz.: ‘We, the jury, find the defendant, John Dubose, guilty as charged in the indictment, and assess his punishment at confinement in the penitentiary for life.’ Judgment was rendered on this verdict, but upon motion of defendant in arrest it was set aside and a new trial awarded him. Though not shown specifically by the record, doubtless the motion was sustained upon the ground that the verdict failed to find the degree of murder of which the jury ascertained defendant to be guilty, which fact is made essential by statute in verdicts of convictions for murder. Penal Code, art. 607; Buster v. State, 42 Tex. 315; Brown v. State, 3 Tex. App. 295; Krebs v. State, 3 Tex. App. 349; Colbath v. State, 2 Tex. App. 391; Boothe v. State, 4 Tex. App. 202; Nettles v. State, 5 Tex. App. 386. On the second trial, which ensued after the new trial above noticed was awarded, defendant set up the former trial and conviction and the new trial in a special plea, claiming that they operated as an acquittal. This plea of former acquittal was excepted to by the district attorney, and on his motion was stricken out by the' court. It is urged on this present appeal that the court erred in sustaining said exceptions, and in striking out said plea. In Simco v. State, 9 Tex. App. 338, this court had occasion to discuss the nature, character, and effect of the special pleas of former jeopardy, autrefois acquit and convict, and one of the rules laid down as established both by statute and decision was that a defendant is not exempt from a second trial for the same offense where a new trial has been granted on his motion, and that if he moves in arrest of judgment, or applies to the court to vacate a judgment already rendered, for any cause, and his motion prevails, he will be presumed to waive any objection to being put a second time in jeopardy, and so he may ordinarily be tried anew. Code Orim. Proc. art. 20; 1 Bish. Orim. Law (4th Ed.) § 844. * * * Such being the law, and the verdict of the jury being clearly insufficient and void, because it failed to find the degree of murder of which the defendant was found guilty, it was most clearly the duty of the court to declare it a nullity, set it aside, and arrest the judgment to be rendered upon it; and, under such circumstances, whether the new trial is awarded ek: mero motu by the court or upon defendant’s motion, the rule is the same; defendant may again be placed upon trial, and a plea of former jeopardy will not avail him. And, the verdict being a nullity, it could not possibly operate an acquittal of murder in the first degree. See Buster v. State, 42 Tex. 315. It was not error, therefore, for the court to strike out defendant’s special plea and hold him to a second trial, as was done.” To the same effect is Sterling v. State, 25 Tex. App. 721, 9 S. W. 45, 8 Am. St. Rep. 452, and Garza v. State, 39 Tex. Cr. R. 360, 46 S. W. 242, 73 Am. St. Rep. 927.

Appellant relies on the case of Grisham v. State, 19 Tex. App. 504, an opinion by Judge White, who also rendered the opinions in the cases of Dubose and Sterling, hereinbefore referred to, and Judge White certainly intended to announce no different rule to that announced by him in the Dubose Case, rendered prior to the Grisham opinion,.and in the Sterling Case rendered by him subsequent to that time, and in the Grisham Case he makes it plain that the reason he held the plea good was the verdict and judgment in the Grisham Case were vaUd, and defendant had suffered at least a part of the punishment, and the judgment was set aside by the court without the solicitation of the defendant. He had in no way sought to have himself relieved from the effects of the verdict and judgment.

The facts in this case do not bring' appellant within the rule there announced, but in this case, within two days after the rendition of the sentence, .appellant moves by applying for habeas corpus to be relieved of any and all punishment under the judgment, sentence, and verdict theretofore,rendered and entered, and on his motion and solicitation, and by virtue of proceedings brought by him, he is by this court relieved from undergoing the penalty fixed by the judgment and sentence; this court holding the verdict was insufficient in law upon which to base the sentence and judgment.

However, in his brief appellant contends that he was “constructively” in the penitentiary from September 13 to November 13, 1913, the date this court rendered the opinion holding the judgment and sentence void. We do not think the facts in this case justify any such conclusion, for two days after sentence he applied for and was granted a writ of habeas corpus by the district court, and from that time until this court disposed of his appeal, had he been conveyed to the penitentiary, the officer so doing would have been in contempt. Appellant, by his act in applying for the writ, had stayed the hands of the officers, and he could not from and after the date of granting the writ be legally confined in the penitentiary, and, as a matter of fact he has not been, nor is it contended that he has been, confined therein. So he has undergone no part of the punishment. But if this were not true, and he had. undergone part of the punishment ünder a void judgment, if he secured his release therefrom by applying for a writ of habeas corpus, a plea of former jeopardy would not be sustained.

■ This question is exhaustively discussed by Judge Davidson in the case of Ogle v. State, 43 Tex. Cr. R. 219, 63 S. W. 1009, 96 Am. St. Rep. 860. In that case Ogle had been convicted and served nearly 18 years in the penitentiary, and secured his release on habeas corpus because the grand jury that returned the indictment was composed of more than 12 men, and was therefore void. The court held that, as he had instituted proceedings to obtain his release from the judgment on the ground that it was void, the fact that he had served 18 years in the penitentiary would not avail him, when he had not served the full term of punishment. Had he not instituted proceedings to have the judgment declared void, and served the punishment fixed thereunder, the rule would be otherwise; but, when a person institutes proceedings and secures the annullment of the judgment, and it is declared void, it will no more avail him as a defensive plea than it will avail the state to punish him thereunder. The judgment and sentence having been declared void by this court, it is no longer a legal judgment and sentence, even though it may appear on the record of the district court of Grayson county, and cannot be made the basis of a plea of jeopardy. In Am. & Eng. Ency. of Law, vol. 17, p. 606, the rule is said to be: “If on motion of defendant the verdict is set aside or vacated, a waiver of objection to being again put in jeopardy will be implied, and he may, as a rule, be tried again, and this is so though the defendant has served out a part of the sentence.” In this case it was at the instance of and on application made by appellant that the original judgment and sentence were vacated and held void, and as upholding this rule in addition to the authorities cited from Texas, cases are cited from the following courts of last resort: Kendall v. State, 65 Ala. 492; Territory v. Dorman, 1 Ariz. 56, 25 Pac. 516; Stewart v. State, 13 Ark. 720; People v. Travers, 73 Cal. 580, 15 Pac. 293; Gibson v. State, 26 Fla. 109, 7 South. 376; McGee v. State, 97 Ga. 360, 23 S. E. 831; Phillips v. People, 88 Ill. 160; State v. Arnold, 140 Ind. 659, 42 N. E. 1095, 43 N. E. 871; Brown v. United States, 2 Ind. T. 582, 52 S. W. 56; State v. Severson, 79 Iowa, 750, 45 S. W. 305; State v. McNaught, 36 Kan. 624, 14 Pac. 277; Com. v. Arnold, 83 Ky. 1, 4 Am. St. Rep. 114; State v. Oliver, 39 La. Ann. 470, 2 South. 194; Cochrane v. State, 6 Md. 400; Com. v. Green, 17 Mass. 515; People v. Murray, 89 Mich. 276, 50 N. W. 995, 14 L. R. A. 809, 28 Am. St. Rep. 294; State v. Brecht, 41 Minn. 50, 42 N. W. 602; Morris v. State, 8 Smedes & M. (Miss.) 762; State v. Patterson, 88 Mo. 88, 57 Am. Rep. 374; State v. Thompson, 10 Mont. 549, 27 Pac. 349; McGinn v. State, 46 Neb. 427, 65 N. W. 46, 36 L. R. A. 450, 50 Am. St. Rep. 617; State v. Blaisdell, 59 N. H. 328; Smith v. State, 41 N. J. Law, 598; People v. Dowling, 84 N. Y. 478; State v. Rhodes, 112 N. C. 857, 17 S. E. 164; State v. Lee, 114 N. C. 844, 19 S. E. 375; Lesslie v. State, 18 Ohio St. 391; Pennsylvania v. Huffman, Add. (Pa.) 140; State v. Stephens, 13 S. C. 285; State v. Reddington, 8 S. D. 315, 66 N. W. 464; Campbell v. State, 9 Yerg. (Tenn.) 333, 30 Am. Dec. 417; Briggs v. Commonwealth, 82 Va. 554; State v. Friedrich, 4 Wash. 204, 29 Pac. 1055, 30 Pac. 328, 31 Pac. 332; Younger v. State, 2 W. Va. 579, 98 Am. Dec. 791; State v. Hill, 30 Wis. 416, and other eases cited on pages 606, 607, of said volume 17.

The United States Supreme Court, in the case of Murphy v. Mass, 177 U. S. 155, 20 Sup. Ct. 639, 44 L. Ed. 711, held: Their plea of former jeopardy cannot be sustained, because it is quite clear that a defendant who procures a judgment against him upon indictment to be set aside may be tried anew upon the same indictment for the same offense of which he had been convicted; citing authorities.

This is the rule adopted in this court, except that, in case the verdict is insufficient, and the judgment and sentence void, as said by Judge White in Dubose v. State, supra the court on his motion may set it aside before punishment is undergone. However, in this instance, it was set aside and held void by this court at the request of appellant, and the court did not err in striking out the plea; and the judgment is affirmed.


author: PRENDERGAST, P. J.

text:
    FORWARD v. STATE.
    (No. 3108.)
    (Court of Criminal Appeals of Texas.
    April 29, 1914.)
    1. Criminal Law (§ 511) — Evidence—'Witnesses — Accomplices—Corroboration.
    Where 'the prosecuting witness testified that his watch was stolen while he was in a saloon, that accused was the only person close enough to him to have taken it, and that accused’s accomplice to whom the watch was delivered, and who pawned it, remained seated in a chair some distance away during the entire time he was in the saloon, there is sufficient corroboration to support a conviction on the accomplice’s testimony that accused took the watch and delivered it to him to/' pawn.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1128-1137; Dec. Dig. § 511.]
    2. Criminal Law (§ 826) — Trial—Instructions — Objections—Time for Requests.
    Under Act April 5, 1913 (Acts 33d Leg. c. 138), amending Code Or. Rroe. 1911, art. 743, where no objection was made when the charge was submitted to accused’s counsel before argument, a request to charge on circumstantial evidence, made during the closing argument for the state, comes too late.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §< 2008; Dec. Dig. § 826.]
    3. Criminal Law (§ 784) — Trial—Instructions — Charge on Circumstantial Evidence.
    In a prosecution for theft from the person, where the prosecuting witness testified that accused was the only person who had an opportunity to steal his watch, and accused’s accomplice testified that accused delivered it to him to pawn, the facts are in such close juxtaposition as to be equivalent to positive testimony, and a charge on circumstantial evidence is unnecessary.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1883-1888, 1922, 1960; Dec. Dig. § 784.]
    4. Criminal Law (§ 1171) — Trial—Appeal —Harmless Error.
    Where the jury were charged to disregard it, a reference by the district attorney in argument to marks of guilt on accused’s face is harmless.
    [Ed. Note.- — For other cases, see Criminal Law, Cent. Dig. §§ 3126, 3127; Dec. Dig. § 1171.]
    Appeal from District Court, Robertson County; J. C. Scott, Judge.
    Amos Forward was convicted of larceny from the person, and he appeals.
    Affirmed.
    Y. B. Hudson, of Bryan, for appellant. C. E. Lane, Asst Atty. Gen., for the State.

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

   PRENDERGAST, P. J.

Appellant was convicted for stealing a watch from the person of Hezekiah Dobbins, and his punishment assessed at the lowest prescribed by law.

Appellant contends that the evidence is insufficient to sustain the verdict, and • within and as a part of that, that the testimony of Chris Tatum; who was an accomplice, was not sufficiently corroborated.

The evidence by Dobbins is to the effect: That on the morning of about May 21, 1913, he went in a saloon, in Hearne to get a drink of beer, and as he walked in he pulled out and looked at his watch and then replaced it in his pocket. The watch was in his side pants watch pocket, and to it was attached a fob. That appellant was standing up at the bar when he walked up and called for beer. Appellant at the time asked him to get him (appellant) also a glass of beer, which he refused to do. That appellant, while he (Dobbins) was at the bar, walked right up by his side, and they stood there about 5 or 10 minutes. That appellant then called him off in the back just out of the saloon, exhibited to him his (appellant’s) little old silver watch, and tried to get him to give him $3 on it. He refused that. That Dobbins then started out of the saloon door, felt for his watch, and missed it, and at once accused appellant of getting it, which appellant vigorously denied. Dobbins swore: “While I was in that saloon, there was no one close enough to me to get my watch, but the defendant, Amos Forward, no one else at all.” Dobbins at once went and complained to the officer. that his watch had been stolen from him. The officer searched appellant, but did not then find the watch on him. That Chris Tatum, when he (Dobbins) went in the saloon, was sitting in a chair over by the .heater and never got up out of the chair while he was in the saloon.

The evidence in no way puts either the saloon keeper or his porter in such position or proximity to Dobbins, while he was in the saloon, as for any suspicion even to attach to them that either got the watch. The. accomplice, Tatum, testified substantially as did Dobbins: That he was sitting back of the heater the whole time Dobbins was in the saloon and never got near him, but that appellant and Dobbins were standing close together right in front of the bar, and that appellant called Dobbins back in the rear of the saloon, and that he never got up out of the chair the whole time Dobbins was in the saloon. That, after remaining in the saloon some little time after Dobbins accused appellant of stealing his watch and appellant denied it, he (Tatum) went out of the saloon and to a Mexican chile joint. That appellant then came in the chile joint, called him out, told him to take the watch over to a pawnbroker’s, pawn it, and get money on it, and he would divide with him the money. That appellant then .delivered to him Dobbins’ watch, and he pawned it with the pawnbroker, got a dollar on it, took the dollar back and delivered it to appellant, and appellant gave him half of it. That he saw Dobbins and told Dobbins if he would give him $2.50, he would go and get his watch. Dobbins, under the direction of the officer, gave him $2.50, and before he got back to Dobbins with the watch he was arrested. He denied that he had it, and the officers searched him and could not find it and then put him in jail. The officer then went to the pawnbroker and found out that Tatum had pawned the watch, a short time afterwards came and redeemed it, and then the officer went to the calaboose where Tatum was confined, and, after talking with him, Tatum got the watch out of the calaboose where he had hid it and delivered it to the officer. The watch was thoroughly identified by all the witnesses as the watch Dobbins stated was stolen from him in the saloon by appellant. This accomplice, Tatum, had been himself convicted for stealing this watch at the previous term of court, but the court granted him a new trial, and the case was still pending against him at the time he testified in this case.

It has been long settled by the many decisions of this court what is essential to the corroboration of the testimony of an accomplice. We think unquestionably, under the law and decisions, the testimony of the accomplice, Tatum, was amply and fully corroborated. Nourse v. State, 2 Tex. App. 316; Jones v. State, 4 Tex. App. 531; Tooney v. State, 5 Tex. App. 193; Simms v. State, 8 Tex. App. 243; Clanton v. State, 13 Tex. App. 157; Moore v. State, 47 Tex. Cr. R. 415, 83 S. W. 1117; Nash v. State, 61 Tex. Cr. R. 264, 134 S. W. 709; Warren v. State, 149 S. W. 135; and many other cases unnecessary to cite. The testimony in this case is clearly sufficient to sustain the verdict.

This case was tried February 6, 1914, long after the Act of April 5, 1913 (Acts 33d Leg. c. 138, had been in effect, amending article 743 and previous articles as to the charge of the court. Before the argument began, the court submitted his charge to appellant’s attorney. At the time he made no objection thereto that the court had failed to charge on circumstantial evidence, nor did he at that time requeát any charge on circumstantial evidence. During the closing argument of the district attorney, he, for the first time, requested the court to submit a charge on circumstantial evidence. The court at that time refused to do so. We cannot review this question even if the court should have given such charge. Besides, under any contingency the facts proven in this case, if they did not show by direct or positive proof appellant stole the watch, they are in such close juxtaposition thereto as to be equivalent to direct testimony, and a charge on circumstantial evidence was not required. Branch’s Criminal Law, § 203, first subdivision and the next to the last subdivision under this section on page 107, where some of the oases are coL lated; Baldwin v. State, 31 Tex. Cr. R. 589, 21 S. W. 679; Surrell v. State, 29 Tex. App. 321, 15 S. W. 816; Dobbs v. State, 51 Tex. Cr. R. 629, 103 S. W. 918; Adams v. State, 34 Tex. Cr. R. 470, 31 S. W. 372; Crews v. State, 34 Tex. Cr. R. 533, 31 S. W. 373; Beason v. State, 43 Tex. Cr. R. 442, 67 S. W. 96, 69 L. R. A. 193; Cabrera v. State, 56 Tex. Cr. R. 150, 118 S. W. 1054; Law v. State, 160 S. W. 99; Ballard v. State, 160 S. W. 92.

As one ground of his motion for new trial, appellant complained that the district attorney, in his closing argument, said: “I want you to -look into this defendant’s face and ■ see if you do not see marks of guilt there.” Appellant alone swore to his motion for new trial. The district attorney contested the motion on this ground and attached thereto his, and the affidavits of every one of the jurors wherein he and they swore that he did not use the language attributed to him above, but instead used this language, “Gentlemen of the jury, look into the face of the defendant, and see if there are not marks of intelligence there,” and at the time he made said statements he was discussing the intelligence of prosecuting witnesses and comparing same to that of the defendant. The court heard all this in hearing the motion for new trial and overruled it. However, he approved appellant’s bill of exceptions to the effect that the district attorney did use such language in bis closing argument. We also find that the appellant requested, and the court gave, this special charge to the jury: “You are instructed not to consider that part of the argument or remarks made by the district attorney to this effect, viz., ‘Gentlemen of the jury, look into the face of this defendant, and say if you do not see marks of guilt there.’ You will not consider this part of the argument for any purpose.” Under the circumstances and the authorities, this question does not present reversible error. Pierson v. State, 18 Tex. App. 564; House v. State, 19 Tex. App. 239; Hardy v. State, 31 Tex. Cr. R. 293, 20 S. W. 561; Tweedle v. State, 29 Tex. App. 591, 16 S. W. 544; Bingham v. State, 6 Tex. App. 169; Frizzell v. State, 30 Tex. Cr. App. 56, 16 S. W. 751; Gowans v. State, 64 Tex. Cr. R. 405, 145 S. W. 614.

The judgment is affirmed.


text:
    LANDRUM v. STATE.
    (No. 3054.)
    (Court of Criminal Appeals of Texas.
    April 22, 1914.
    Rehearing Denied May 13, 1914.)
    1. Embezzlement (§ 4) — Elements of Offense.
    Where defendant induced prosecutrix to deliver to him certain certificates of stock in a-life insurance compans' and a note for $300, for which he was to procure for her shares in another insurance company and deliver the same to her after the exchange had been made, but he sold her shares and converted the proceeds, he was guilty of embezzlement.
    [Ed. Note. — For other cases, see Embezzlement, Cent. Dig. § 1; Dec. Dig. § 4.]
    2. Embezzlement (§ 35) — Propeett Embezzled — Indictment.
    Where defendant induced prosecutrix to deliver to him certain stock certificates and a note, to be exchanged for shares in another company and returned to her, but he immediately sold the stock so delivered and converted the proceeds, he was properly charged with embezzling the proceeds of the sale and not the stock.
    [Ed. Note. — For other cases, see Embezzlement, Cent. Dig. §§ 55-59; Dec. Dig. § 35.]
    Appeal from District Court, Erath County; W. J.' Oxford, Judge.
    W. B. Landrum was convicted of embezzlement, and he appeals.
    Affirmed.
    Odell, Johnson & Harrell, of Cleburne, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

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

   HARPER, J.

Appellant was convicted of embezzlement, and his punishment fixed at fiye years’ confinement in the penitentiary.

Appellant contends that the facts do not show that he is guilty of the crime of embezzlement, and, if they do, then he was guilty of embezzling the stock delivered to him by Mrs. Dunn, and not the proceeds of the stock, and could not be convicted under this indictment, which charged him with embezzling the proceeds derived from a sale of the stock. We have read the record critically, and have arrived at the conclusion that under the facts an indictment for embezzlement will lie. Mrs. Dunn testified she was the owner of certain stock in the Amicable Life Insurance Company; that appellant represented to her that he was agent of the Mutual Loan & Investment Company, and that the Mutual Loan & Investment Company had an option on 250 shares of stock in the Western Casualty & Guaranty - Company; that appellant induced her to deliver to him her stock in the Amicable Life Insurance Company, and give a note for $300, for which he ■was to procure for her shares of stock in the Western Casualty & Guaranty Company. •She swears positively, “I did not sell my stock to him [appellant]. ” If appellant' only claimed to have an option to purchase Western Casualty & Guaranty Company stock, and Mrs. Dunn did not sell him her stock, but delivered it to him to be used by him in •procuring for her stock in the Western Casualty & Guaranty Co., such relations would be established between them as would bring him within the terms of article 1416 of the Penal Code. An agency or fiduciary relation-ship would be shown by her testimony. " The - question here presented is discussed- at length in the case of Leonard v. State, 7 Texas Crim. App. 417, and especially in the opinion ■ on the motion for rehearing. As said in that - case, the fact that appellant had authority to dispose of the Amicable Life Insurance • Company stock would not render it less embezzlement, if he had the criminal intent at - the time he received the stock, or conceived the criminal intent after he had sold the stock, and then converted the proceeds to his . own use and benefit. If she had sold the .- stock to appellant, of course there could be no embezzlement, but she swears positively she did not do so, but delivered it to him under an agreement that he was to use it in procuring for her stock in the Western Casualty & Guaranty Company, upon which he had an option, and in this way the relationship between him and Mrs. Dunn arose. He did not claim to own the Western Casualty & Guaranty Company stock, only that he had an option to purchase it,.and this stock of the Amicable Life Insurance Company and the note were given to him with which to make the purchase for Mrs. Dunn. If the evidence conclusively showed that appellant had the fraudulent intent at the time he made the representations to Mrs. Dunn, perhaps appellant would be guilty of swindling and not embezzlement, but if at the time he made the representations he intended to procure the stock in the Western Casualty & Guaranty Company for Mrs. Dunn, he would come lawfully into possession of the Amicable. Life Insurance Company stock, with authority to dispose of it, and the offense would be embezzlement.

In the case of Golden v. State, 22 Tex. App. 15, 2 S. W. 537, this court held, in an opinion by Presiding Judge White: “Defendant induced Mrs. Weedon to turn over the money to him, ostensibly and with the understanding that he was to deposit the same for her in bank for safe-keeping. She intrusted it to him for that and no other purpose. At the very time he obtained it, it is true that to all intents and purposes he was a thief, intending to steal it; but in so far as she was concerned, she was only creating .him her agent to take the money for deposit for her to the bank. The trust imposed in him by her was that he would, as her agent, take the money to the bank, and it was intrusted to him solely for that purpose. Instead of complying with the purposes of the trust and his agency, he misapplied, misappropriated, embezzled, and converted to his own use the money so confided to him. The evidence makes a most clear and indubitable case of embezzlement, even though it may contain all the essential elements of theft also. It amply sustains the conviction for embezzlement, and we feel fully justified in adding that the facts developed in this record discover as heartless and as inhuman a wrong to obtain money by fraudulent devices as is rarely to be found in the history of crimes unaccompanied by personal violence.”

In this case there, can be no question but that Mrs. Dunn intrusted her stock in the Amicable Life Insurance Company to appellant to be used by him in the purchase of Western Casualty & Guaranty Company stock, and for. no other purpose. The question then arises, Did appellant embezzle the stock or the proceeds of the stock; he being convicted of the latter, offense? The court instructed the jury: “If you should believe from the evidence that at the time the defendant sold said certificates of stock to Mr. Stewart, he made the sale of the same as his own property, with the intention at said time fraudulently to deprive Mrs. Dunn of their value and to appropriate it to his own use and benefit, and with the intention that he would not carry out his agreement with Mrs. Dunn and would not invest said proceeds in certificates of stock in the Western Casualty & Guaranty. Company for Mrs. Dunn, or if you have a reasonable doubt as to whether or not this was his intention at the very time he made the sale of said certificates of stock to Mr. Stewart, then the defendant cannot be convicted under either of the counts submitted to you in this indictment, and it will be your duty to give him the benefit of such doubt and acquit him.” It is thus seen that the issue was squarely submitted to the jury, and they find under the facts in the case that the intent to appropriate to his own use was conceived after he had sold the Amicable stock to Mr. Stewart ; and, if so, he would be guilty of embezzling the proceeds of the sale and not the stock itself, and we cannot say this conclusion is not warranted by the testimony. Appellant may at that time have intended to purchase Western Casualty & Guaranty Company stock for Mrs. Dunn, and the fact that he sold her stock in the Amicable in the very town where he secured it from her would indicate as much, or a boldness in wrongdoing not often met with. At any rate, we cannot say that the jury were not authorized to so find, and, as the court fairly submitted that issue to them, and they find against him on this contention, the judgment is affirmed.

DAVIDSON, J„ absent at consultation.


text:
    Ex parte BARNES.
    (No. 3118.)
    (Court of Criminal Appeals of Texas.
    April 22, 1914.
    Rehearing Denied May 13, 1914.)
    1. Habeas Corpus (§ 86) — Application— Evidence.
    An application for writ of habeas corpus for the discharge of relator is merely a pleading, and, in the absence of any evidence of the truth of the allegations of the application, relator must be remanded.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§'77, 78; Dec. Dig. § 85.]
    2. Grand Jury (§ 36) — Witnesses—Refusal to be Sworn — Effect.
    . One who, when summoned before the grand jury, refuses' to be sworn, and who, when brought before the district judge, again refuses to be sworn and answer an'y question, or to affirm in any way, is guilty of contempt of court, authorizing confinement in jail until she will take the .oath required by law, in the absence of any proof that her refusal was on account of any religious or other convictions.
    [Ed. Note. — For other cases, see Grand Jury, Cent. Dig. §.§ 75-78;. Dec. Dig. § .36.]
    3. Grand Jury (§ 36) — Privilege of Witnesses — Answer Tending to Subject Witness to Criminal Prosecution.
    . That a person summoned before the grand jury refused to be sworn to testify because she presumed that she would be questioned about alleged incestuous relations between herself and her father did not excuse her for her refusal to be sworn, but, after being sworn, she would be justified in refusing to answer questions relating to the subject.
    [Ed. Note. — For other cases, see Grand Jury, Cent. Dig. §§ 75-78; Dec. Dig. § 36.]
    4. Witnesses (§ 303) — Privilege of Witnesses — Answer Tending to Subject Witness to Criminal Prosecution — Immunity.
    Where, on the refusal of a witness summoned before the grand jury to be sworn on the ground that she presumed she would, be questioned concerning a crime committed by her and another, the district attorney, with the sanction and approval of the district judge, tendered her immunity from prosecution as to any matter about which she might testify, she could be compelled .to testify.
    [Ed. Note. — For other cases, see Witnesses, Cent, Dig. §§ 1049, 1050; Dec. Dig. § 303.]
    Habeas corpus by Lottie Belle Barnes for her discharge from custody.
    Relator remanded.
    John R. Storms, of Ft. Stockton, and Edwin F. Vanderbilt, of San Antonio, for appellant. W. C. Linden, Dist. Atty., of San Antonio, and C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Relator, having been refused a writ of habeas corpus by the district courts in Bexar county, applied to this court and was granted a writ, and the hearing set for April 15th.

On that day relator’s attorney and the district attorney appeared and argued the case, but relator introduced.no evidence in support of the allegations contained in the application. In the absence of any proof supporting the allegations, relator should be remanded. The application is merely a pleading, and does not prove itself. Ex parte Welburn, 157 S. W. 154, and eases there cited.

The district attorney did offer some evidence, and this evidence would show that when the relator was summoned before the grand jury she refused to be sworn or affirm. When she was carried before the district judge she again refused to be sworn to answer any question, or to affirm in any way, and yet there is no proof offered that such action was on account of any religious or other convictions. This would be such contempt as would authorize her confinement in jail until she should purge herself of contempt and take the oath required by law to be administered to all- witnesses.

It would seem from the proof offered by the district attorney that relator presumed that she was going to be questioned by the grand jury about alleged incestuous relations between her and her father. This furnishes no excuse for refusing to be sworn to answer sueb questions as might be propounded to her by the grand jury. After being sworn, if such questions were propounded, then, and not until then, would she be justified in refusing to answer such questions.

However, it further appears from the testimony offered by the district attorney that when the witness refused even to be sworn, that he then and there offered and tendered her complete and absolute immunity from prosecution as to any matter about which she might be called upon to testify, which tender met with the sanction and approval of the district judge. Under such circumstances, she could be compelled to testify as to her incestuous relations between herself and her father, if any. Ex parte Muncy, 163 S. W. 29, and Ex parte Higgins, 160 S. W. 696. As said in the Higgins Case, it is the better practice that the sanction and approval of the judge of the district court be made a matter of record in his court, and, while the judgment entered in this case impliedly so states, yet it does not expressly do so, and in all such orders it would be proper, and the court should recite that immunity from prosecution had been offered the witness, which offer the court approved, and he then and there informed the witness she could not and would not be prosecuted for any matter about which she might be called on to testify.

The relator is remanded.

DAVIDSON, J., absent at consultation.


text:
    SCOTT v. STATE.
    (No. 3113.)
    (Court of Criminal Appeals of Texas.
    April 29, 1914.)
    1. Rape .(§ 59) — Assault with Intent — Instructions — Definition of Force.
    In a prosecution for assault with intent to rape a girl under 15 years of age, it was not necessary for the court to define “force” in the charge, since the consent of the girl would be no defense.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 88-100; Dec. Dig. § 59.]
    2. Criminal Daw (§ 678) — Separate Offenses — Election.
    Where it appeared that defendant was separately indicted for assaults with intent to rape a girl under 15 years of age, alleged to have been committed on two different dates, and evidence of both offenses was admitted in the trial on the indictment charging the second offense, in connection with a statement that the state relied on the second offense, the defendant could be convicted only for the second offense.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1580-1583; Dec. Dig. § 678.]
    3. Criminal Law (§ 783%) — Separate Offenses — Election—Instructions.
    In such a ease, while the evidence of the first offense should not have been stricken, the court should have instructed the jury that the-defendant was not on trial for the offense committed on the former date.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1879, 1986; Dec. Dig. § 7.83%.]
    4. Rape (§ 59) — Assault—Instructions— “Aggravated Assault.”
    In >a prosecution for assault with intent to rape a girl under 15, where the court submitted, the issue of aggravated assault, such assault should have been defined as being, under the-circumstances of the case, the indecent and improper fondling of the person of a female under* 15.
    [Ed. Note. — For other cases, see Rape, Cent. Dig-. §§ 88-100; Dec. Dig.-§ 59.

    For other definitions, see Words and Phrases, vol. 1, pp. 270, 271.]
    Appeal from District Court, Grayson County; J. K. Jamison, Special Judge.
    George Scott was convicted of an assault with intent to rape, and he appeals.
    Reversed and remanded.
    Lawson & Cawthon, of Denison, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted of an assault with intent to-rape, and his punishment assessed at 15 years’ confinement in the penitentiary.

The indictment in this case charges the assault to have been committed on or about the 10th day of November, 1913, on Gladys Scon-yers, a girl under 15 years of age. ■

The complaint that the court should have defined “force” and instructed the jury in regard thereto is not applicable to this character of case; for, if the offen'se was committed with the consent of the girl, it would be no defense, for, under the law, she is declared too immature to consent.

But it appears that after the girl had testified to the offense taking place on November 10th, on cross-examination she also testified to appellant having also assaulted her on October 25th, and on that date had given her $2, when the county attorney stated: “Counsel understands there are two eases against the defendant in this matter. We are trying him now on the 10th of November. I don’t suppose he wants to try both cases at once.” After appellant had further cross-examined her in regard to these transactions, the county attorney, on redirect examination, had her testify: “Mr. Scott was at my house twice, and tried to do that way with me. I remember what happened each time he was there. The first time he was there was about October 24th or 25th, and the last time about the 10th of November — the day he was arrested.” It is further shown by another bill that the county attorney in his closing address said to the jury: “That, if defendant was not guilty of the crime alleged on November 10th, then they should consider the evidence as to whether or not he was guilty of the crime attempted to be proved as having been committed on October 25, 1913.” The court, in approving the bill, states: “The county attorney took the position presented by the charge of the court, which was to the effect, if defendant at any time within three years prior to the return of the indictment did as charged, he would be guilty.” This but emphasizes the contention that the jury was authorized to convict appellant on this trial of either of the offenses testified to by the prosecuting witness, although there were separate indictments pending for each of said alleged offenses.

The record also discloses that appellant moved to strike from the record and instruct the jury not to consider any testimony in regard to an alleged act on October 25th. This was after the county attorney had stated, as shown above, that he was trying the offense this time alleged to have taken place on November 10th. While, under the circumstances,' the court did not err in not striking this evidence from the record, yet the court in his charge should have instructed the jury that he was not on trial for the offense alleged to have occurred on October 25th, and the purposes for which said testimony was admitted in evidence, and especially when appellant’s counsel presented a special charge requesting that the court so instruct the jury as he did in his special charge No. 2. Special charges Nos. 1 and 3 were correctly refused by the court.

Another matter we would call attention to, although not complained of in a way which we would be authorized to consider it, yet as the case will be reversed for the reasons above stated, and as the court submitted aggravated assault, the court should have in some portion of the charge properly defined aggravated assault as applicable to the evidence in this case — the indecent and improper fondling of the person of a female under. 15 years of age.

The judgment is reversed, and the cause remanded.


text:
    GUTHRIE v. STATE.
    (No. 3089.)
    (Court of Criminal Appeals of Texas.
    April 15, 1914.
    Rehearing Denied May 13, 1914.)
    1. Weapons (§ 13) — Right to Caeey — Recovery of Property.
    Where a husband sold his com crop and thereafter separated from his wife, who remained on the farm and resisted efforts of the purchaser to gather the crop, accused, hired by the purchaser to gather the crop, both knowing of the wife’s claim and her intention to resist, is not authorized to carry a pistol.
    [Ed. Note. — Eor other cases, see Weapons, Cent. Dig. §§ 16, 17; Dec. Dig. § 13.]
    2. Weapons (§ -13) — Right to Caeky — Consent of Another.
    No one can give to another permission to carry arms on his premises in violation of law.
    [Ed. Note. — For other cases, see Weapons, Cent. Dig. §§ 16,17; Dec. Dig. § 13.]
    3.Weapons (§ 9) — Right to Carry — “Place of Business.”
    A farm to which accused goes to forcibly take some corn claimed by his employer is not the “place of business” of accused within the statute so as to entitle him to carry a pistol.
    [Ed. Note. — For other cases, see Weapons, Cent. Dig. § 8; Dec. Dig. § 9.

    For other definitions, see Words and Phrases, vol. 6, pp. 5390-5392.]
    Appeal from Red River County Court; George Morrison, Judge.
    Joe Guthrie was convicted of unlawfully carrying a pistol, and he appeals.
    Affirmed.
    Chambers & Black, of Clarksville, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was convicted of unlawfully carrying a pistol, and his punishment assessed at a fine of $100.

The facts in this case would, show J. L. Upchurch was a married man, and in the year 1913 rented land from Dr. Dinwiddie and raised a crop thereon; that in the latter part of October he sold his ungathered corn crop to Turner Devinney in payment of a debt due for groceries, and in a few days thereafter, and before Mr. Devinney had gotten the corn, he and his wife parted, and he had left the place, his wife continuing to live in the house on the rented premises. It appears that on the morning of November 1st Mr. Devinney employed Bob Swope and W. A. Huddleston to gather the corn, and they went in the field to do so. Mrs. Up-church went to the field and vigorously protested, and caused these two men to throw the corn they had gathered out of the wagon and leave the premises. They reported the facts to Turner Devinney, and also told appellant about the circumstances. Roy Elmore testified that he, appellant, and C. R. Fogg met Swop and Huddleston, and they told, appellant about being run out of the cornfield by Mrs. Upchurch, when appellant replied “that he would gather the corn if Devinney would pay for it”; that, when Swope and Huddleston told appellant he had better let it alone as he might get killed, appellant said “he was ready to die, and would gather it for Devinney if he wanted him to.” Devinney then told appellant to get some hands and gather the Upchurch corn. O. R. Fogg and Roy Elmore went with him. It further appears from the record that Mr. Devinney told appellant “that Mrs. Upchurch or her brother-in-law might prevent him from gathering the corn, or might hurt him, and he [appellant] had better 'carry a gun for protection.” Appellant armed himself with a pistol and went to. the cornfield to gather the corn. Appellant admits he carried the pistol to the Upchurch cornfield, but says Mr. Devinney told him it was not against the law for him to do so.

Appellant, Elmore, and Fogg all testify that, when they got to the field and commenced to gather the corn, Mrs. Upchurch appeared on the scene, armed with a pistol, ordered them to desist, and throw out what they had in the wagon, and, when they refused, she was very abusive, used obscene language, and drew her pistol on appellant, when appellant drew his pistol and fired it, as he says, in the ground. After Mrs. Up-church had further cursed and abused them, appellant said “he had wasted the first shot, but he had no more to waste, and that the one he had shot was all he had to throw away.” The woman apparently was frightened and left, going baclr to the house. Thus it is seen that Devinney and appellant both knew that Mrs. Upchurch was claiming the corn before appellant consented and agreed to go and gather it. It may be that the title of Devinney to the corn was perfect, having bought it from the husband of Mrs. Up-church; but, as they knew that after the separation Mrs. Upchurch was claiming the corn, the law did not authorize them, or either of them, to arm themselves with a pistol and go and take the corn by force. Such proceedings as this leads to too many unfortunate homicides for the law to sanction such proceedings. If Mrs. Upchurch had not become frightened when appellant fired his pistol, and had fired back at appellant, there would have been more than likely a dead man or woman in the field that day.

After Upchurch had separated from his -wife and left her there on the rented premises, no man had a right to enter thereon, without her consent, and by force take property therefrom to which she was setting up a claim. If Mr. Devinney in fact was the legal owner of the corn, after he had been informed by Swope and Huddleston that she claimed the corn and had driven them from the field, he had no legal right to send an' armed force in the field and take the corn by force. In this day and time no man can take the law into his own hands; but, if his property is wrongfully detained by another, the law furnishes him ample remedies. He could have sworn out a sequestration writ, 'and the officers of the law would have taken charge of the corn, and the right to the corn adjudicated. The contention of appellant that, as Mr. Devinney had bought the corn from the husband, he as the employs of Devinney, had a right to arm himself, enter the premises by force, and take the corn, regardless of the protests of the . wife, cannot be sustained.

The charge of the court was more favorable to appellant than he was entitled to in law, and, as there was no exception reserved to the introduction of testimony, the judgment is affirmed. The contention of appellant that, if the testimony brought him . within any of the exemptions named in the statute, the verdict should not be sustained is sound in law; but the facts in this case do not bring him within any of the exemptions. He was not carrying the pistol on his premises nor in his place of business. The premises were the premises of Mr. and Mrs. Upchurch, and, if Mr. Upchurch had given him permission to go on the premises armed with a pistol, this would not authorize him in law to do so. No one can give to another permission to carry arms on This premises in violation of law. This wag not his place of business, for he was employed by Mr. Devin-ney at another and different place, and he Willingly undertook to engage in this seeming dangerous enterprise — go on the premises of another and forcibly take property therefrom that his employer was claiming, and armed himself with a pistol so as to be able to forcibly take the corn.

If the Upchurch farm can be held to be the place of business of appellant, then every person who has some slight business with his neighbor, or in any portion of the town, or in another part of the precinct of his residence, can claim that, while attending to this temporary matter, he had the right to carry a pistol with him and keep it on him while transacting this business matter, and such construction would nullify the pistol statute. The eases of Ball v. State, 25 S. W. 627, Ross v. State, 28 S. W. 199, Sanderson v. State, 50 S. W. 348, Page v. State, 25 S. W. 774, Gibbs v. State, 156 S. W. 687, Craig v. State, 60 Tex. Cr. R. 195, 131 S. W. 563, and other eases cited by appellant, do not sustain his contention. In the Craig Case the appellant had the pistol in the room where he slept and kept his clothes; in the Page Case he had the pistol in the bank where he was regularly employed; in the Ross and Ball Cases the defendant was residing on the premises where he had the pistol, making it his home for the time being; in the Gibbs Case the evidence showed he had the pistol on land he had rented and had control of. The facts in this case come more clearly within the rule announced in McCauley v. State, 45 S. W. 576. In that case McCauley had left his home and gone to his employer’s house to assist in killing a hog. This “temporary business” did not exempt, even though he had the legal right to be on the premises where he had the pistol, and was engaged in a lawful business.

The judgment is affirmed.


text:
    SUGARMAN v. STATE.
    (No. 3105.)
    (Court of Criminal Appeals of Texas.
    April 29, 1914.)
    Indictment and Information (§ 81) — Complaint and Information — Suffieciency— Allegation of Christian Name.
    A complaint and information, alleging that the Christian name of accused is unknown, support a conviction, if otherwise good, where accused does not, during the trial, suggest his name and no motion in regard thereto is made.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 216-224; Dec. Dig. § 81.] •
    Appeal from Bexar County Court; J. R. Davis, Judge.
    One Sugarman was convicted of crime, and he appeals.
    Affirmed.
    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 Indexei

   HARPER, J.

Appellant was convicted of an aggravated assault, and his punishment assessed at a fine of $25.

The complaint and information allege that the Christian name of appellant was un-unown. When tried, he did not suggest what nis name really was, and no motion in .regard thereto was made. No statement of facts accompanies the record; neither does it contain any motion for a new trial, nor any order on such motion if any was filed, the recognizance taken in the case reciting that an appeal had been taken to this court.

The complaint and information being sufficient, the judgment is affirmed.


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

text:
    SCOTT v. STATE.
    (No. 3101.)
    (Court of Criminal Appeals of Texas.
    April 29, 1914.)
    Larceny (§ 8*) — Acts Constituting.
    Where no valid levy of personalty of a debt- or was made until a specified date, and possession was not taken by the sheriff until that date, an appropriation by the debtor of the personalty prior to that date was not larceny.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. § 20; Dec. Dig. § 8.*]
    Appeal from Childress County Court; Frank W. Freeman, Judge.
    L. F. Scott was convicted of theft, and he appeals.
    Reversed and remanded.
    Joseph H. Aynesworth, of Childress, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of the theft of milo-maize, and his punishment assessed at a fine of $5 and one day in the county jail.

Substantially, the evidence is that appellant leased 125 acres of land from A. T. Culbertson. This lease was to include the year 1913 from the 1st of January to 31st of December. Appellant agreed to and did plant 100 acres of cotton and 25 acres of maize, of which Culbertson was to have one half and appellant the remaining half. On the 13th of August it seems that a verbal contract was entered into by appellant with one J. C. Neely, by which appellant agreed to convey to Neely his undivided interest in the crops and deliver the premises to Neely on the 18th of August. For this Neely assumed the payment of four notes mentioned in the statement of facts, and agreed to execute and deliver to appellant his, Neely’s, promissory note for the sum of $70.55 to be dated August 13,1913, and due October 30,1913. Neely also agreed to execute and deliver to appellant a mortgage upon the property conveyed) by Scott to him to secure the note for the above $70.55. On August 19th Neely filed suit in the district court against appellant, setting forth the terms of the contract, alleging that appellant would not give him possession and turn over to him the property mentioned. In other words, he, appellant, refused to carry out the verbal contract. In his petition Neely alleges that he executed and tendered to appellant the above-mentioned note for $70.55 as well as the mortgage upon the crop to secure the note, and asked for an enforcement of the contract. He also asked for possession and a writ of sequestration. The writ was granted on 19th of August, after the premises were to be delivered under the previous verbal contract. This writ was placed in the hands of the sheriff. The return shows that the sheriff went to the premises, saw appellant, and told him he had a writ and would levy upon the premises and all the growing crop which had not been gathered." On 23d of August, after the first supposed levy, another writ of sequestration was issued and placed in the hands of the sheriff, or rather one of his deputies, with return on it showing he had levied upon and taken possession of the premises. Appellant agreed to get off the premises as soon as he could find another place, and was left in. possession of the premises and property as he had been at all times during the year. .Between the first and second levy appellant gathered some of the maize and placed it in the barn with other maize which was already in there. This was done, however, after he had seen and consulted with an attorney, who had informed him that the property was his, and he did not have to move, and that he could use the maize. There seems to be no question of the fact that neither of the officers ever did dispossess appellant of the premises, but he was left in possession, except for the fact that he was told the levy had been made. It is also shown that appellant’s attorney advised him that he did not have to move, and that the property belonged to him, and he could use it. It is further shown that he had. about 1,500 pounds of maize in the barn, and he gathered an additional amount of the maize alleged to have been levied upon, and placed it in the barn on top of his own maize. He had two mules belonging to Mr. Culbertson with, which he made the crop and some of his own stock. To this stock he fed some of the maize. He had more maize in the barn than that which had been gathered, and there was no intention or purpose on- appellant’s part to sell any maize or any other property. Appellant also testified he had consulted an attorney about his rights, and had been in- ■ formed by the attorney that the levy was not valid, and that he was in possession of the premises and property, and had a right to use it. There seems to be no dispute in regard to the evidence, which shows that appellant had the 1,500 pounds of maize in the barn, or about that amount, and that after the supposed levy was made he gathered the maize part of the crop and placed it in the barn there on the premises, and that he in no way handled it or used it except enough of the maize to feed the stock. These are the facts in the case. This does not constitute a case of theft. The property is alleged to be in the sheriff who made the levy. There is no fraudulent intent on the part of appellant shown or attempted to be shown. Without going into the legal status of the levy or supposed levy of the writ and validity of it, we hold that the facts, independent of the illegality of the legal proceedings, do not show a case of theft, even conceding that appellant used the maize in feeding the stock, and that is all the evidence of appropriation found in this record.

The judgment is reversed, and the cause remanded.

PRENDERGAST, P. J., and SCARPER, J.

We do not agree to the reasoning and all that is said in the above opinion, for if a valid levy had been made and possession shown in the sheriff, we think the facts would sustain a conviction. But as the evidence discloses that no valid levy was made until September 6th, and possession of the property not taken by the sheriff until that day, and appellant appropriated none of the property after September 6th, the evidence will not sustain a conviction, and we therefore agree to a re-' versal of the case.


text:
    SWILLEY v. STATE.
    (No. 3103.)
    (Court of Criminal Appeals of Texas.
    April 29, 1914.)
    1. Criminal Law (§ 1090) — Appeal—Bill op Exceptions — Necessity—Motion for Continuance.
    Where no bill of exceptions was reserved tc the action of the trial court in overruling accused’s motion for continuance on account of the absence of witnesses, such ruling cannot be reviewed.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2S22, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    2. Witnesses (§ 331%) — Impeachment—Former Testimony of Absent Witness — Witness Sick or Temporarily Absent.
    In a prosecution for homicide, where the defendant had made an affidavit as to the testimony that would be given by three absent witnesses, it was error to compel him to testify on cross-examination as to what he had heard those witnesses testify at the inquest, and at a hearing on habeas corpus, where two of the witnesses were shown to be kept away from the trial by sickness, and the other was temporarily absent from the state; the former testimony of witnesses being- inadmissible to impeach the defendant’s credibility, or for any other purpose, where they are alive and within the jurisdiction of the court.
    [Ed. Note. — For other cases, see Witnesses, Dec. Dig. § 33iy2.]
    3. Criminal Law (§ 721) — Cross-Examination of Accused — Subject of Inquiry.
    It was improper for the district attorney to ask accused whether he had testified at a hearing on habeas corpus; since he had the right to testify or not at such hearing, as he saw proper, and his failure so to do was not a circumstance against him.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1672; Dec. Dig. § 721.]
    4. Criminal Law (§ 822) — Trial—Instructions — Charge Considered as a Whole.
    Where the defendant claimed justifiable homicide on the ground that deceased was attempting to rob him,, and also on the ground of self-defense, a charge, one paragraph of which seemed to require the jury to believe both grounds of justification existed before they could acquit, was not erroneous, where the charge, considered as a whole, was not susceptible of that construction.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 1990, 1991, 1994, 1995, 3158; Dec. Dig. § 822.]
    Appeal from District Court, Jasper County; A. E. Davis, Judge.
    John Swilley was convicted of crime, and be appeals.
    Reversed and remanded.
    Bisland, Adams & Bruce, of Orange, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

The offense alleged in the indictment was committed in Orange county, and tried in Jasper county on a change of venue.

When the case was called for trial, appellant moved to continue the case on account of the absence of three witnesses, J. P. Crain, Mrs. M. J. Reed, and Albert Cram, all of whom aré stated to reside in Orange county, Cram being alleged to be temporarily out of the state. The record discloses that Crain and Mrs. Reed did live in Orange county, and were absent on account of sickness. As there was no bill of exceptions reserved to the action of the court in overruling this motion, it is not presented in a way we can review the matter.

Appellant does not deny that he killed Ed Rosenbaum, but admits he did so, stating that while he was asleep Rosenbaum came into his room and had stolen his purse from his pocket; that he awoke and grappled with Rosenbapm, and charged him with the theit, which Rosenbaum denied; that a struggle ensued, when Rosenbaum rushed out of the door, grabbed a shotgun sitting near the door, and attempted to shoot him, when he (appellant) shot deceased with a Winchester, thus presenting two grounds of justifiable homicide, one self-defense, and the other robbery and killing the thief while in the presence of the person robbed. Appellant in his application stated facts he expected to prove by the absent witnesses which would tend to support his theory of self-defense; that is, they arrived at the scene of the homicide shortly after the shooting, and they saw a gun lying on the ground where appellant testified deceased was when he attempted to shoot him.

Of course, this application for a continuance was not admissible in evidence on the trial of the case for appellant for any purpose, nor did he offer it in evidence. The jury should not and did not know anything of the contents of such application until the happening of the hereinafter cited occurrences. Appellant took the stand in his own behalf, and testified to a state of facts tending to support the above two pleas of justification. On cross-examination, the prosecuting officers were permitted to read in the presence' of the jury, a portion of appellant’s application, and ask appellant if he was not present at the inquest proceedings and hearing of this case on habeas corpus and heard the witnesses testify on one or the other two proceedings, and then, over objection, he was compelled to tell what he heard these witnesses testify at these trials. We do not deem it necessary to state all this reproduced testimony; it is sufficient to state that a portion thereof was highly injurious to appellant, and in direct conflict with a portion of his testimony on this trial. Testimony of absent witnesses given at a former trial cannot be reproduced or put in evidence, except in those cases where the witnesses have since died, gone beyond the jurisdiction of the court, or kept away by the connivance of the defendant. The record shows that two of the witnesses were then in Orange county, sick, and within the jurisdiction of the court. The other witness was only temporarily absent from the state, his family still residing in Orange county. Under such circumstances, testimony given at either the habeas corpus trial or the inquest could not be reproduced by defendant, or any other person, and the fact that he had applied for a continuance on account of their absence did not authorize the state to reproduce their testimony on this trial. These matters are complained of in several bills of exception, but we have passed on them jointly, for, under the record in this case, none of 'the reproduced testimony was admissible. And, of course, the testimony being inadmissible, the charge in regard thereto was improper. It was not admissible to affect the credit of defendant, nor for any other purpose; the witnesses being alive and within the jurisdiction of the court.

Again, it was improper for the district attorney to ask the witness whether or not he testified at the habeas corpus trial. He had the right to testify or not, as he saw proper, and the fact he did not deem it necessary nor advisable to testify on the habeas corpus hearing would not be a circumstance against him. Brown v. State, 57 Tex. Cr. R. 269, 122 S. W. 567, and eases there cited.

Appellant complains that the charge, taken as a whole, would bear the construction that the court, instead of instructing the jury that if they believed either of the defensive theories' of justification, required them to believe both, before he would be entitled to an acquittal. While in one paragraph of the court’s charge it would seem that the criticism was just, yet the charge, taken as a whole, we do not think, would bear this construction, nor would the jury be misled wherein the court instructed the jury that, if they believed the robbery theory, they would acquit, “and,” if they believed the self-defense theory, they would acquit. Perhaps if the word “or” had been used in the beginning of this second paragraph the meaning would be more clear, and on another trial the court will so word his charge as to be free from this criticism.

The judgment is reversed, and the cause is remanded.