text:
    DIAMOND v. DUNCAN.
    (Nos. 2324, 3377.)
    (Supreme Court of Texas.
    June 26, 1915.)
    1. Insurance ©=^103 — Agent of Insured-1 Failure to Reinsure — -Liability.
    In an action against an insurance broker undertaking to keep property insured, that a policy in an insolvent company did not expire until throe months after the destruction of the property by fire did not relieve the broker from liability for the loss sustained by the insurer because of its worthlessness.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 130; Dee. Dig. ©=»103.]
    2. Insurance 103 — Agent of Insured-Failure to Reinsure — Liability—Damages.
    In an action against an insurance broker undertaking to keep property 'insured and neglecting to secure valid new policies for a period during which the property was destroyed by fire, the damages recoverable by the insured were to be diminished by the amount of the unpaid premiums thereon, or the cost of the insurance.
    [Ed. Note. — For other eases, see Insurance, Cent. Dig. § 130; Dec. Dig. <@=103.]
    3. Insurance <@=>103 — Failure to Reinsure —Liability—Pleading.
    The right of the broker to have the amount of unpaid premiums deducted from the amount of the insured’s recovery was defensive matter which should have been pleaded.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. 130; Dec. Dig. <@=103.]
    4. Insurance <@=103 — Failure to Reinsure —Liability—Burden oe Proof.
    The burden was upon the broker to prove the amount of the unpaid premiums, if admissible in mitigation of damages on the general issue.
    TEd. Note. — For other cases, see Insurance, Cent. Dig. § 130; Dec. Dig. <@=103J
    5. Insurance <@=103 — Failure to Reinsure —Liability.
    In an action against an insurance broker for negligence in not securing valid new policies on property destroyed by fire, where the burden of showing the amount of unpaid premiums allowable in mitigation of damages was on the defendant and there was no proof on the question, the court’s failure to submit it was not error, and the refusal of his request for a peremptory verdict on the theory that plaintiff and failed to make out his case by his omission of such proof was proper.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 130; Dec. Dig. <§=103.]
    6. Appeal and Error <@=1171 — Reversal-Amount of Recovery.
    In an action against an insurance broker for negligence in failing to obtain valid policies on property destroyed by fire, where a judgment in plaintiff’s favor was affirmed in the Court of Civil Appeals and in the Supreme Court, and where the amount of the premiums which should have been allowed in reduction of damages was trivial in comparison with the amount in controversy, the judgment will not be reversed on rehearing.
    [Ed. Note. — For other eases, see Appeal and g. <@= Error, Cent. Dig. 1171.1 4546-4554; Dec. Di
    Hawkins, X, dissenting.
    On motion for rehearing.
    Motion overruled.
    For former opinion, see, 172 S. W. 1100.
   PHILLIPS, C. J.

It was erroneously stated, in the opinion of the late Chief Justice rendered upon the original hearing of the case, that the smaller of the two policies of insurance involved — the one for $200 — had expired before the fire occurred. This policy did not expire, according to its t.erms, until about three months after the destruction of the property by fire. Under the findings of the jury, however, this circumstance does not in our opinion relieve the plaintiff in error of liability for the loss sustained by Duncan because of the worthlessness of the policy.

We should possibly advert to one other matter. It is again urged by the plaintiff in error in his motion that the judgment in Duncan’s favor for the loss sustained by him on account of Diamond’s failure to comply with his agreement to renew the former’s policies, as found by the jury, ought now to be reversed because of the charge on the measure of damages, and the refusal of his requested instruction for a peremptory verdict. The contention is that the charge did not require that the jury in assessing the damages should deduct from the amount of the policies the amount of the premiums thereon, or the cost of the insurance if Diamond had performed his agreement. It appears that Duncan had not paid the amount of the premiums; and we agree that his measure of damages was the amount o.f the policies, less the premiums or cost of the insurance. We accordingly held on the original hearing that Diamond would have been entitled to such credit in the assessment of the damages, if it had been pleaded by him; but inasmuch as he did not plead it, nor prove it, he was in no position to complain.

We are still inclined to the view that this was defensive matter and ought to have been pleaded. Right of Way Oil Company v. Gladys City Oil, etc., Co., 157 S. W. 737, 51 L. R. A. (N. S.) 268. It should not be overlooked that the policies were in fact issued by Diamond as the insurance agent, and the cause of action arose upon his agreement, substantially, to maintain the insurance on the property in that amount, the worthlessness of the policies within his knowledge, and his failure to notify Duncan that they had become worthless. If Duncan had not paid for them, Diamond was, of course, entitled to offset the amount of the premiums; but we think it was incumbent upon him to make the plea.

If the proof was admissible in mitigation of the damages on the general issue, without the necessity of a pleading, it is clear that the burden was upon Diamond to make it. He was an insurance agent. Duncan was not. The cost of the insurance or the amount of the premiums was a fact peculiarly within his knowledge. Certainly he was in better position to know what the amount was than Duncan. It is elementary law that the burden of proof is on him who best knows the facts, or in whose knowledge the fact peculiarly lies. 1 Greenleaf on Evidence, § 79; Ryan v. Railway Co., 65 Tex. 13, 57 Am. Rep. 589. In his brief in the Court of Civil Appeals Diamond contended that there was no sufficient proof to show what the amount of the premiums was, and that therefore the alleged error could not be cured by remittitur. Sinqe the burden was upon him to make the proof, and, according to his contention, there was no proof on the question, the charge of the court was not erroneous in failing to submit it. The requested instruction for a peremptory verdict proceeded upon the theory that Duncan had failed to make out his case in having omitted to make this proof, and for the same reason the trial court correctly refused it.

This case was tried in January, 1910. The judgment in Duncan’s favor was affirmed in the Court of Civil Appeals on June S, 1911. A writ of error was granted hy this court October 5, 1911. The case was decided here, affirming both judgments, January 27, 1915. At best, the amount of the premiums was trivial in comparison with the amount properly in controversy. We overrule the contention of the plaintiff in error on the question for the reasons we have stated. But, if the question were not subject to be thus disposed of upon a ground that is clear and satisfactory, it would in our opinion amount to almost a travesty to now reverse these judgments and order a new trial on account of a .small error in the amount of the verdict.

With the correction noted in the original opinion, the motion for rehearing is overruled.

HAWKINS, J.

(dissenting). Plaintiff in error complains that the charge to the jury assumed, as a matter of law, that Diamond was under the affirmative duty of notifying Duncan of the insolvency of Traders’ Insurance Company, or of procuring for Duncan new and solvent insurance. I find no merit in that contention, inasmuch as “renew” in the charge was apparently used by the trial court and understood by the jury as including keeping up the insurance, in a solvent company. And it seems to have been so treated by the Court of Civil Appeals.

However, the charge of the court on the measure of damages was clearly erroneous in permitting recovery of the full amount of insurance which, under the jury’s finding, Diamond should have had kept in force for Duncan. From that sum should have been deducted the amount of the premiums which such substitute insurance would have cost Duncan. His recoverable damages, if any, should be merely compensatory.

The amount of such premiums was not established by the evidence; consequently, the amount which Duncan was entitled to recover was not established; wherefore plaintiff failed to make out his case. Logically, then, defendant’s requested special charge No. 1, directing a verdict for defendant, should have been given. This point was duly presented in the motion for a new trial, and in the assignments of error filed in the trial court, and in appellant’s brief in the Court of Civil Appeals, at page 54 et seq., under “Second Assignment of Error” (No. 5, in Tr.), and four distinct propositions thereunder, and was also duly presented to this court. The establishment of the proper measure of damages being an essential and affirmative part of Duncan’s case, there rested upon Diamond no duty of pleading or proving what the cost of the premium for such substitute insurance would have been. I do not consider the cost thereof a matter so peculiarly witjfin the knowledge of Diamond ,as to constitute an exception tó the general rule, nor as bringing this .case within the rule which this court announced in Right of Way Oil Co. v. Gladys City Oil, Gas & Mfg. Co., 157 S. W. 737, 51 L. R. A. (N. S.) 268, in which this court said:

“If, however, the person who produced the oil acted in good faith, he would be entitled to have deducted the cost of bringing it to the surface and to the market. The contention of plaintiff in error is in effect that the owner must concede the good faith of the trespasser and prove that which is Jmown only to his adversary, the cost of producing the oil.” (Italics mine.)

Emphasis was there laid on the fact that the cost of producing the oil was known to the trespasser only. Here, it seems to me, it would have been easy for the plaintiff to have proved what the substitute insurance would have cost Duncan. My present strong conviction is that the rule announced in the cited case ought not to he applied to the facts of this case; although I confess that, since this motion was filed, I have been unable to find opportunity for going thoroughly into that question. I think that, at least, the motion for a rehearing should be granted.
      cg^jFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <§=JTor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: PHILLIPS, O. J.

license: Public Domain

text:
    TWEED v. WESTERN UNION TELEGRAPH CO.
    (Nos. 2329, 3187, and 3189.)
    (Supreme Court of Texas.
    June 26, 1915.)
    1. Master and Servant <§=>289 — Injuries TO SeKVANT-^CoNTRIBUTORY NE0LI&ENCE.
    Where the foreman of a telegraph company inspected a pole in the presence of a lineman and stated that it was all right, the lineman was not contributorily negligent as a matter of law in going on the pole without first securing it by guy wires, as it was ordinarily his duty to do.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1089, 1090, 1092-1132; Dec. Dig. <£=>289.]
    2. Appeal and Error i§=>1175 — Disposition oe Case — Decision of Intermediate Court —Remand.
    Where the Court of Civil Appeals reversed a case in which an employer recovered damages for personal injuries because, as stated in the opinion, the evidence showed contributory negligence as a matter of law, but remanded the case for new trial instead of rendering- judgment for defendant, the Supreme Court, taking jurisdiction because the opinion practically settled the case, cannot render judgment for the plaintiff, though he was not negligent as a matter of law, and will affirm the remand of the case, since the Court of Civil Appeals has a right to pass on the weight of the evidence, and tlieir remand is equivalent to a holding that the verdict was contrary to the weight of the evidence, which holding the Supreme Court cannot disturb.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4573 — 4587; Dec. Dig. 1175.]

      On motion by- both, parties for rehearing.
    Both motions overruled.
    Eor original opinion, see 166 S. W. 696.
   PHILLIPS, O. J.

We have carefully considered the respective motions for rehearing filed by each of the parties to the case, and conclude that both should be overruled.

We adhere to the disposition made of the several questions discussed in the opinion delivered by the late Chief Justice Brown on the original hearing of the ease. In that opinion it was stated:

“The facts are not definitely in favor of either party as to authorize this court to enter judgment; therefore we affirm the judgment of the Court of Civil Appeals, and remand the case.”

Inasmuch as the effect of the opinion of the Court of Civil Appeals, as we construe it, was a holding by that court that the plaintiff below, according to the undisputed proof, was guilty of contributory negligence as a matter of law, and the cause was remanded for another trial under its judgment, the fact that we affirmed its judgment in remanding and declined to render judgment here for the defendant in error, in connection with the quoted statement from Judge Brown’s opinion, sufficiently indicated, we thought, that we did not agree with the conclusion of that court that the undisputed proof showed Tweed to have been guilty of contributory negligence as a matter of law; since, had we agreed with that conclusion, we would have had the authority to render the judgment for the defendant in error under the statement made by counsel for plaintiff in error in their application for writ of error that “the judgment of the * * * Court of Civil Appeals, * * * ‘practically settled the case.’ ” The judgment of that court having remanded the cause for another trial, our jurisdiction only attached because of the practical settlement of the case by the opinion of that court; the law governing our jurisdiction in the case being that in force prior to the amendatory act of 1913.

It is due, however, because of the seeming misapprehension of Judge Brown’s opinion, that we more definitely state that we do not agree with the conclusion of the honorable Court of Civil Appeals upon the question of Tweed’s contributory negligence. We believe that the evidence was such as to require the submission of that issue to the jury. We base this view upon that portion of the testimony which showed that before Tweed went upon the pole, the fall of which caused his injury, the telegraph company’s foreman, in Tweed’s presence, made an inspection of the pole, and within Tweed’s hearing announced, substantially, that it was all right. Granting that it was ordinarily the duty of an employé about .to go upon a pole under the circumstances shown to properly secure it by the use of the guy wires and clamps, and that Tweed in this instance failed to take that precaution, still the inspection of the pole by the foreman and his assurance that it was all right made it a question of fact for the jury, we think, whether Tweed’s going upon the pole without having previously secured it by guy wires and clamps was an act amounting to contributory negligence.

Notwithstanding our disagreement with the conclusion of the Court of Civil Appeals upon this question, it is plain, under the settled rule of decision, that we have no authority to render judgment here for the plaintiff in error. This proceeds from the jurisdiction of the Court of Civil Appeals to determine the facts of a case, and its undoubted power to set aside the findings of the jury in the trial court, and remand the case for another trial. That was done here, in the Hear exercise of the authority of that court. The case of Pollock v. Railway Co., 103 Tex. 69, 123 S. W. 408, the opinion having been delivered by Chief Justice Gaines, clearly controls this question. There upon a favorable judgment for the plaintiff the Court of Civil Appeals held that the evidence indisputably showed that the plaintiff was guilty of contributory negligence, reversed the judgment of the trial court, and remanded the case. This court took jurisdiction because that ruling “practically settled the case.” Upon the hearing the court held that the conclusion that the plaintiff was shown to have been guilty of contributory negligence according to the undisputed proof was erroneous. Nevertheless this court recognized that the Court of Civil Appeals had full authority to set aside the verdict and remand the case, and under this condition it was without the power to render judgment. It was there said upon this question:

“The Court of Civil Appeals have jurisdiction to determine the facts; and, because they have held that there was no sufficient evidence to sustain the verdict, we must presume, that they would have held that the verdict was contrary to the weight of the evidence, and therefore the judgment is reversed, and the cause remanded for a new trial.”

The case of Lee v. Railway Co., 89 Tex. 583, 36 S. W. 63, is another controlling authority. ' There, as in this case, the Court of Civil Appeals held that the plaintiff’s decedent was guilty of contributory negligence under the evidence as a matter of law, and for that reason reversed the judgment of the trial court and remanded the case. On motion for rehearing the identical contention which is here made by the plaintiff in error was there urged, namely, that inasmuch as this court had held on the original hearing that the conclusion of the Court of Civil Appeals was erroneous and the judgment of that court was based upon a conclusion of law, the judgment should have been here rendered in favor of the plaintiff in error, who had invoked the jurisdiction of the court upon tile ground that the decision of the Court of Civil Appeals “practically settled the case.” In the course of Judge Brown’s opinion upon this question it was said:

“We cannot reverse the judgment, of the Court of Civil Appeals; for, although error was committed in announcing the legal conclusion upon the evidence, that court had the power to reverse for the reason that the verdict was against the weight of the evidence. It is true that the statute says that, when the decision of the Court of Civil Appeals is sustained, this court must enter judgment accordingly; but that means that in such case the court must enter judgment against the applicant if the facts found justify it. The case will he remanded to the district court for trial in accordance herewith.”

An extended printed argument has been filed in this ease by counsel for the plaintiff in error, urging that we ought to render judgment in his favor because of our not having sustained the conclusion of the Court of Civil Appeals that Tweed was guilty of contributory negligence as a matter of law, the jury having resolved that issue in favor of the plaintiff; but, in view of these plain adjudications as well as the explicit opinion of Judge Gaines in Choate v. Railway Co., 91 Tex. 406, 44 S. W. 69, we find some difficulty in understanding how any misapprehension could have arisen upon this question. With the Court of Civil Appeals invested with the full power of determining the facts of the case, and setting aside the verdict of a jury on the facts, it must be assumed, as is said in the opinions quoted, that in reaching a conclusion that the evidence showed as a matter of law that the plaintiff was not entitled to recover, and for that reason ordering that the cause be remanded, in the same case it would have held that the verdict was against the weight of the evidence. With a case thus remanded under the judgment of the Court of Civil Appeals, it would amount to a denial of its authority to determine the facts and set aside a verdict on the evidence for this court to assume the power of rendering the judgment because it differed with the conclusion reached by that court upon the effect of the evidence.

Beck v. Texas Co., 105 Tex. 303, 148 S. W. 295, furnishes no analogy. The distinction between that case and this one is manifest. There the Court of Civil Appeals did not exercise the authority it possessed to set aside the verdict on the facts and remand the cause. It rendered judgment in favor of the defendant on the facts; and in doing so made no finding of fact which would defeat recovery. In differing from the Court of Civil Appeals upon the question of law as to the effect of the evidence, we were authorized to affirm the judgment of the lower court, since the Court of Civil Appeals had not sought to exercise its province of determining the facts and ordering the case remanded for another trial because of its difference with the jury on the facts, and in affirming the judgment we therefore in no wise trenched upon its authority. Had the Court of Civil Appeals there remanded the case, instead of rendering judgment, we would have been compelled to respect its judgment to that extent, and could not have affirmed the trial court judgment.
      <®=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, J.

text:
    PRITCHARD v. STATE.
    (No. 3560.)
    (Court of Criminal Appeals of Texas.
    May 26, 1915.
    Rehearing Denied June 23, 1915.)
    Criminal Law <@=>1098 — Appeal—Statement op Pacts.
    A statement by defendant in the nature of a history of the case, without evidence to sustain it, unverified, and with the record not showing exceptions said to have been taken, cannot be considered:
    [Ed. Note. — For other cases, see Criminal Law, ^ Cent. Dig. §§ 2863, 2865; Dec. Dig. <@=>
    Appeal from Smith County Court; Jesse F. Odom, Judge.
    J. M. Pritchard was convicted of theft, and appeals.
    Affirmed.
    J. M. Pritchard, in pro. per. C. C. Me-. Donald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of misdemeanor theft. The record is before us without a statement of facts or bill of exceptions. There is a statement of the defendant, filed on the 18th of February, in which is stated many things, which cannot be considered. It is a matter not even sworn to nor approved by the court. It seems to be in the nature of a history of the case from his viewpoint during the progress of the trial There is no evidence introduced to sustain it. The exceptions which he states were taken are not in the record. The matter is in such condition that it cannot be considered. Nothing in it is verified in any way, or undertaken to be verified, except by tbe unsworn statement of the defendant, who seems to have acted as his own attorney. As the case is before us, there is nothing we can review.

The judgment will therefore be affirmed.


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

text:
    SATTERWHITE v. STATE.
    (No. 3570.)
    (Court of Criminal Appeals of Texas.
    June 9, 1915.)
    1. Criminal Law <®^359 — Evidence—Admissibility.
    Where the state relies upon circumstantial evidence to connect defendant with a crime, defendant may prove, by the same character of testimony, that others committed it, and ■ that he did not.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 789, 790; Dec. Dig. <@=> 359.]
    2. Criminal Law <@=>448 — Evidence—Opinion Evidence.
    In a prosecution for murder, evidence that a trailway ran close to the spot where the body of the deceased was found, that there were not obstructions between such spot and the trail-way, and that a person of ordinary . height, passing along such trailway, could easily have seen the dead bbdy if it had been there, was’ not inadmissible, as calling for an opinion.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1035-1039, 1041-1043, 1045, 1048-1051; Dec. Dig. @=>448.]
    3. Witnesses @=>318 — Corroboration oe Impeached Witness.
    In a prosecution for murder, where a witness for the state testified that she had seen a $5 and a $10 bill in the possession of deceased, and upon being recalled testified that, in addition to the bills named, she had seen a large roll of bills in his purse, a rigid cross-examination in that respect did not authorize the state to introduce her testimony given at the inquest in corroboration, no predicate having been laid to contradict or impeach her testimony.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1084-1086; Dec. Dig. @=>318.]
    4. CRIMINAL Law @=>404 — Evidence—Demonstrative Evidence.
    In a prosecution for murder, evidence that the dial of a watch found on the body of the deceased, and which had stopped, indicated a certain time was admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 873, 891-893, 1457; Dec. Dig. @=>404.]
    5. Criminal Law @=>337 — Evidence—Admissibility— Conduct oe Grand Jury.
    In a prosecution for murder, evidence of the acts and conduct of the grand jury in their investigation of the crime is inadmissible, where it was not in issue, under a count in the indictment averring that the killing occurred by some means to it unknown, to show that the grand jury could, by diligence, have ascertained the means by which the killing occurred.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. § 762; Dec. Dig. @=>337.]
    6. Homicide @=>234^Evidence — Sueeicien-cy.
    In a prosecution for murder, circumstantial evidence held insufficient to support a conviction.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 482 — 493; Dec. Dig. @=>234.]
    7. Homicide @=>178 — Evidence — Admissibility.
    In a prosecution for murder, where the evidence as to defendant’s guilt was entirely circumstantial, it was not error to exclude testimony that unidentified burglars had been operating in the neighborhood, such evidence having no tendency to show who committed the crime.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 307-309; Dec. Dig. @=178.]
    Prendergast, C. J., as to point 3, and Davidson, J., as to point 7, dissenting.
    Appeal from District Court, Kerr County; R, H. Burney, Judge.
    Jack Satter white was convicted of murder, and he appeals.
    Reversed and remanded.
    Lee Wallace and H. C. Geddie, both of Kerrville, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of murder. The indictment charges deceased to be named Walter Dobson. The punishment was 25 years in the penitentiary.

The statement of facts is quite lengthy, and purely circumstantial. Appellant was working as night engineer of the ice and light plant, in Kerrville at time of alleged homicide, which occurred supposedly on the night of the 11th of July, 1914. On the 15th appellant was arrested. The deceased had spent some time in Kerrville prior to the homicide and had gone away. On the night of the 10th of July deceased came to Kerr-ville accompanied by two parties from San Antonio. The evidence indicates that he came to Kerrville to marry Miss Carrie Butler. The day following his arrival at Kerr-ville he went to see the girl, the testimony indicates, three times, morning, afternoon, and night. About 10 o’clock Saturday night he left her house and went to the home of Jake Reinhardt, where he was rooming, and stated that he was going to the'ice plant. He was very despondent and crying, and said he had not found what he expected to find, referring to the girl, and that he might not come back that night. He went to the ice plant about 11 o’clock. At this time appellant, Polly, and Holsworth, the owner of the plant, were present. Shortly afterward Hols-worth left. After Holsworth left appellant went to the home of Will Reno, a blacksmith, who lived near appellant, and got the keys to the shop, and returned to the ice plant with a bottle of whisky. This whisky he had placed in the shop the afternoon before, same having been given to him by Ress, when he paid his bill at the saloon on that afternoon. It was his custom to leave whisky at this shop because he did not want his wife or mother to know he used it. After taking the bottle of whisky to the shop, the evidence of Polly, the only evidence in the record on this phase of the case, shows that appellant, Dob-son, and Polly took about three drinks, and about 2:20 o’clock in the morning of the 12th Polly says he went to bed, leaving appellant and Dobson at the plant. He further testifies that about 3:40 o’clock appellant waked him up, where he was sleeping in the laundry some hundred feet from the plant and talked with him while he was putting on his clothes. Polly asked appellant where his friend was. He replied that he drank his whisky and left a little while prior to the conversation, gome conversation came up between the parties as to a stick pin that deceased was wearing, which it seems was a Mexican topaz, appellant stating that deceased had won it in a poker game. Appellant had on the same clothes that he had on when Polly went to bed, and there was no blood on these clothing, and no signs of a struggle about the plant; in fact, no evidence of any crime having been committed about the ice plant. Appellant went home early the next morning and went to sleep as usual. The record also shows at no time before or after the finding of the dead body did appellant show any fear or apprehension or any disturbance of mind. Monday afternoon the body of Dobson was found at the oil tank 210 yards In direct line away from tlie ice plant, and much further tlie usual traveled route. There is a cedar yard where cedar timber is stacked between the plant and the tank. The tank is by the side of the railroad track, and there are no lights near that place. The skull of deceased was crushed or caved in on top, and an irregular piece of skull, something like two inches in diameter, driven into the skull. On the side of the head were two wounds, one of which cut through the top of the ear and fractured the skull. These seem, however, not to have been fatal. The face and head were swollen and discolored, and the evidence showed that the wounds producing these swellings and discoloration occurred at least 30 minutes before death ensued, and that the blow on the head produced instant death. There was a great deal of blood on the body and hand, coat and vest, of the dead man. He had a watch and chain and five cents in money. He had Peen seen with some currency bills on the afternoon of Saturday by one of the Butler girls. On the following Tuesday a hammer belonging to John Williams was brought to Huntington, who had taken great interest in the investigation of the case. Williams was an enemy of the deceased, and was day engineer at the plant. Williams testified that this hammer he used to drive spikes in poles. It was also used some about the plant to break coal. There was no evidence as to where the hammer was Saturday night or at any time until Tuesday. There was no blood on the hammer, but Huntington said he scraped a small speck of substance from the face of the hammer which under the microscope the doctors said they believed to be animal matter, fatty substance. Two people ate their lunches in the plant at night and two in the daytime. A chisel was also picked up somewhere about the plant, which seems to have been a broken one. As we recall this part of the testimony, the chisel is shown to have had the usual place for inserting a wooden handle, but this cavity was unoccupied by a wooden handle, and just on the inside of this was a speck which one of the witnesses said he thought was blood, but it was not analyzed. It was a dark substance, and may as well have been paint or crude oil. Two men came to Kerrville with deceased from San Antonio, and the following day moved to the same place where deceased roomed to room; that deceased had selected a place in the yard to sleep under the trees. They requested to sleep in the yard,' and did so sleep. The evidence shows deceased and the two San Antonio men who came with him met in a saloon in San Antonio. They seem to have been strangers at that time. There were a great many strange Mexicans in the town of Kerrville at the time, two families of Mexicans lived in box cars just across the track from where the body was found. There is evidence also that about 3 o’clock, or between 3 and 4, in the morning and the time the state claims the homicide occurred, two men were seen and heard running hurriedly from the direction of where deceased’s body was subsequently found. They were seen within 100 yards, or such matter, of this spot. This may be a sufficient statement as a predicate for discussion of the questions.

There are two or three bills of exception reserved to the refusal of the court to permit the defendant to prove that from the 3d of July to and including the 10th burglaries for the purpose of theft or robberies, as some of the witnesses term it, had occurred in Kerrville, a town of about 2,500 inhabitants. Among other houses, the residence of the district judge, Hon. R. H. Burney, was burglarized and property taken therefrom. Who these parties were was not known. Without going into a detailed statement of this evidence as shown, these bills of exception show that it could have been proved by these witnesses, including the district judge, that these various houses had been burglarized 'and property taken and by unknown parties. We are of opinion this testimony should have been admitted. This being a case purely of circumstantial evidence, and the state relying upon the testimony already indicated to connect the defendant with the homicide, which mainly grew out of the fact that he had been the last party seen with deceased before his dead body was found Monday afternoon, this testimony should have been admitted. The state introduced statements of the defendant showing deceased had left the ice plant in good health and no harm had been done him up to that time, and that he had never seen him afterward. It was permissible to show by the same character of testimony upon which the state relied, that some other party may have killed the deceased. If robbery was the incentive or motive for the killing, these unknown burglars had as much motive to kill him for his money as did appellant. The idea that appellant had any money after the homicide is excluded by all the testimony. The court did permit evidence of the fact that these two men came from San Antonio with deceased and went to the same place and were sleeping outdoors with him. The court did also permit testimony suggesting the theory of suicide. Deceased stated he intended to commit suicide, and had selected a place and means of doing it. There is evidence going to show that some one had climbed to the top of the oil tank, as there were tracks found at the top. The body of deceased was found at the oil tank, lying in a peculiar position on his back, with both hands under his back, and one leg drawn up, and his hat over his face, or partially so. There is evidence, also in this connection, that the homicide did not occur Saturday night. The doctors testified at the time the body was found Monday afternoon that it had been dead from 20 to 24 hours. They gave their reasons from an examination of the body why their statement would be correct. There is evidence also that this body was not at the oil tank during Sunday. One witness testifies he was city scavenger; that he passed there on horseback, and, as we recall, within 15 feet of where the body was subsequently found, and the body was not there on Sunday evening. There was no blood found on the person or clothes of appellant. This is made clearly to appear. Under all these circumstances it is discoverable that the state was relying entirely upon circumstances which were meager and decidedly lacking in cogency. The state having introduced evidence that appellant was not with deceased after he left the ice plant, it certainly was permissible to show circumstances which put it within the power of others to commit the homicide. The unidentified burglars seem to have been in the business of robbing houses to obtain property which did not belong to them. Of course, we understand that where a burglar enters a private residence for the purpose of looting, the house and taking away property, it is within his contemplation that a homicide may result. He is on missions of thievery or robbery, or any other violent way of taking property belonging to his fellowman. The motive would be as strong on the part of the burglars, if robbery was the proposition to be imputed to appellant, as it would be on appellant’s part. There is evidence also to the effect that Jack Polly, whenever the homicide was discussed, would become nervous and excited. These theories are all in the ease made by the circumstances and facts, and went to the jury, except with reference to these nocturnal burglaries. We are of opinion that this testimony was clearly admissible, and it was error to discard it. Dubose v. State, 10 Tex. App. 230; Hart v. State, 15 Tex. App. 234, 49 Am. Rep. 188; Blocker v. State, 55 Tex. Cr. R. 32, 114 S. W. 814, 131 Am. St. Rep. 772; Wheeler v. State, 56 Tex. Cr. R. 548, 121 S. W. 166; Kirby v. State, 49 Tex. Cr. R. 519, 93 S. W. 1030; Harrison v. State, 47 Tex. Cr. R. 400, 83 S. W. 699; Kunde v. State, 22 Tex. App. 97, 3 S. W. 325; Golin v. State, 37 Tex. Cr. R. 96, 38 S. W. 794; Murphy v. State, 36 Tex. Cr. R. 24, 35 S. W. 174; Skidmore v. State, 57 Tex. Cr. R. 500, 123 S. W. 1129, 26 L. R. A. (N. S.) 466. In the Wheeler Case, supra, quite a number of cases are cited which are in point. A great many other cases might be cited but they will be found collated in the opinions above mentioned.

Where the state relies upon circumstantial evidence to connect the defendant with the crime, the defendant may prove by the same character of testimony that others committed it, and that he did not. This being a case of circumstantial evidence on the part of the state, the defendant had the legal right to prove the crime upon others by the same character of testimony, or introduce to the jury this character of testimony to show that other parties probably did the killing. The state introduced appellant’s statements, by which it was bound, unless disproved, that he did not see the deceased after 2:20 o’clock that night, at which time he was alive and leaving appellant. The evidence shows deceased was killed subsequently to that, if killed that night at all. The evidence tended strongly to show that he was not killed Saturday night. If the doctors were correct, the body being found Monday afternoon, then the deceased had not been dead exceeding 24 hours. A witness also testified that the body was not at the place Sunday evening where it was found Monday evening. Appellant’s clothes had no blood on them. If the body was not at the tank at the time of the killing, and was subsequently moved there, appellant could not have moved it without getting blood upon his clothes. So taking these bills of exception and the recitations in them, we are of opinion that it was not only permissible, but it was very important matter, that defendant be permitted to prove that these unknown burglars may have killed deceased, and this especially when it is shown that appellant did not see him after 2:20 o’clock Saturday night, and the killing occurred after that time. Under the authorities cited the court was in error. This testimony was admissible.

Another bill recites that while the wit-. ness Turner for the state was being cross-examined by the defendant with reference to the location of the dead body and the surroundings of that locality, he was asked if it was not a fact that, immediately north of the spot where the body was found, there was no obstruction, and that a trailway led up to the negro portion of the town, and the ground was practically level, and that a person of ordinary height, on foot, could easily have seen the body lying where it was found. The state objected on account of its irrelevancy, and that it called for an opinion of the witness. The purpose of the question and the testimony to be elicited thereby was to show that there was a trailway leading near and immediately north of the spot where the body was found, and that there -was no obstruction between this trailway and the spot where, the body was found, and that people passing along said trail during Sunday going to and from town could easily have seen the dead body, if it had been where found, and the defendant would have shown by the witness, had he been permitted to answer the question, that there is a trailway running by said spot, immediately north of it, and that there is no obstruction between the trailway and the place where the dead body was lying, and that a person of ordinary height could easily have seen the body lying where it was found had it been there. The objection made by the state was sustained by the court, and the witness was not permitted to answer or detail the testimony sought to be elicited. The court qualifies this bill as follows:

“That said witness was permitted to state the condition of the ground, the trailway, and the like, and no objection to his doing this was urged by the state. The objection urged by the state, and sustained by the court, was to the question which called for the opinion of the witness, to wit, ‘Whether a person of ordinary height on foot could easily have seen the body where it was found,’ presumably from the trailway. With this explanation the bill is allowed and ordered filed.”

This hill is thus signed by the judge. We are of opinion this testimony is clearly admissible. This may be what is usually termed in our law books a “shorthand rendering” of the facts, and, if an opinion at all, comes within that rule, but we believe it is not an opinion; it is a fact. If it could be shown by this witness passing along in plain view of where the body was found that a man of ordinary height could have seen the body if there during Sunday, it was a fact. The witness may have stated the nature of the ground, contour of the surface of the earth, and all that, but this did not convey the definite idea to the jury that the parties passing along were in such position that if the dead body was at the tank during Sunday it could have been seen. One witness was permitted to testify that he rode along this trailway on horseback on Sunday, and his evidence makes it positively certain the body was not there. The fact that this witness swore that it was not there, or that he did not see it there, did not render the other testimony inadmissible. Appellant could prove the same facts by all the witnesses if they had been permitted to so swear.

Another bill recites that Leartie Butler, the young sister of Carrie Butler whom deceased came to Kerrville to marry, testified, was excused, and retired from the witness stand, and the state then recalled her and offered to read to her in the presence of the jury excerpts from her written testimony given by her when she testified before the justice of the peace at the coroner’s inquest, held after finding the body of deceased. Appellant objected for various and sundry reasons. This evidence was then read to the jury as follows:

“On Saturday afternoon Mr. Elam paid me. I went to Mr. Dobson to get change for a quarter, and when Mr. Dobson pulled out his purse to give me change, he only had 20 cents in small change, and was not able to give me change for the quarter, but he just gave me the 20 cents he had in change and told me to keep it. At this time I had occasion to notice his purse and contents. Mr. Dobson, in trying to make the change, displayed a large roll of bills. I cannot say how much there was in the roll, but the purse was a new and very large one, and looked to be well filled.”

The court qualifies this bill by stating that the district attorney did not agree to the foregoing bill because it did not fully state and explain the matters connected with the introduction of the testimony objected to. He says:

“I herewith state by way of explanation that this witness was a young girl 14 years old, as shown by the evidence; that she was called to testify by the state; that when first called she failed to say that she had seen a large roll of bills in deceased’s possession, and only stated that she saw a $5 and $10 bill at the time mentioned. J3ome two or three days later, Sunday intervening, she was again called as a witness, and testified that, in addition to the $5 and $10 bills which she had testified when first called, she had seen a large roll of bills in Dob-son’s purse, but did not see the denomination of any but the two mentioned. Thereupon the defendant’s attorney gave her a very rigid cross-examination — Why she had not told this when first on the stand, how was it she now told it, and had not Judge Storms told her she had made a mistake, and how often he and the district attorney had talked to her since she was on the stand before, where she had since been Saturday night, and who with, and where she had been Sunday, etc., and how she came to come back on the stand to tell this, and much more along^ the same line — calculated and intended to discredit her said statement last made in the minds of the jury, and the state offered her testimony taken at the inquest as shown, to corroborate her statement made in the particular named, and for no other purpose, as fully explained by the district attorney at the time.”

This is signed by the judge. The contents of this bill may be stated as showing sthat they called this girl to the witness stand to testify a second time, she not having testified about the bills on the first, and finally after testifying to the $5 and $10 hills, instead of proving by her that she had seen this large roll of money mentioned, they asked and proved by her that she had testified as set out in the bill at the coroner’s inquest. The court’s explanation, it occurs to us, intensifies the error in permitting her testimony to go to the jury. If appellant had shown she had made contrary statements to her testimony on the witness stand, they might then introduce testimony sustaining her statement made at other and different times under legal principles. But that was not the case. She did not make a different statement before the jury to what she made before the coroner’s inquest. She had not testified to everything before the jury to which she testified before the coroner. A rigid cross-examination of the witness does not authorize corroboration of the witness. She must be placed in the attitude of having changed her testimony ox-testified differently now from what she had formerly stated. Probably if the state had asked her originally about the large roll of bills, or called her attention to it, she would or may have so testified before the jury. The bill excludes the idea of any predicate laid to contradict or impeach her testimony. It was simply a rigid cross-examination on what she did testify. It was, in other words, a failure on the part of the girl to testify to the large roll of bills, and a rigid cross-examination in reference to' that matter. This did not authorize the introduction of this testimony as a means of corroboration.

Another bill was reserved to the introduction of certain matters connected with the watch found on the body of deceased. The bill recites: That this watch was found on deceased; it was an.old, large open-face silver, or apparently silver, watch. The witness identified the watch as the one iound on the person of the deceased at the time his body was found, and stated that the watch was not running at the time, and that it had not been running since. That the district attorney then offered in evidence the watch and chain, and also offered in evidence the time indicated on the dial of the watch. Appellant objected, contending the testimony was not admissible in the absence of proof of tile fact that the watch was running prior to the time deceased was hilled. That the watch stands introduced to show that the chain was broken. Appellant objected to that part of the testimony as to what the dial on the face of the watch showed being introduced, and called the attention of the jury that it stopped at 3?40, because it had not been shown that the watch had been running prior to the time the man was killed, if he was killed, or when it had been wound up, or the fact that his being killed stopped it, or anything of that sort. That the watch had not been examined by any jeweler or anybody to show that there has been such an injury inflicted upon it as would stop it from running. That there was no predicate laid for the introduction of the testimony, etc. The court overruled these objections, and stated it would be introduced “as a circumstance for what it was worth.” We are inclined to the opinion that upon another trial it should not be permitted to go to the jury, unless there is some evidence going to show that the watch had been running, or was in condition to run, prior to the time that it was found on the body of deceased. There were no bruises found about the body of deceased where the watch was found. If the watch had been running, and for some reason occurring at the time of the homicide if the watch had stopped at that particular junction, it might be a fact for the jury to consider. We are of opinion that upon another trial this testimony, unless connected up in some way, should not be permitted to go to the jury. The majority are of opinion the dial of the watch indicating 3:40 o’clock as time of stopping its running is admissible.

There is a lengthy bill reserved to tlie action of the court permitting the state to prove the acts and conduct 'of the grand jury in their investigation of the case, which was very thorough and full. The court said that the reason he permitted this testimony was in explanation of the second count in the indictment, which charged the killing occurred by some means to the grand jury unknown. If it had been an issue in the case that the grand jury could, by reason of diligence, ascertain the means hy which the killing occurred, and evidence was introduced contesting the second count of the indictment on that proposition, this testimony might have been admissible under an array of authorities, commencing with Jorasco v. State, 6 Tex. App. 238, but that- character of evidence is not admissible unless there is an issue of that sort. The acts and conduct of the grand jury are not admissible in evidence against the accused. However, if there had been such, and the defendant was relying upon a defeat of the conviction under the second count because the grand jury could have ascertained that the instrument could have been known to the grand jury by which the killing occurred, then the evidence on the part of the grand jury as to their investigation along that line might be admissible, but there seems to have been nothing of that sort in this case. Upon another trial this character of testimony should not be permitted to go to the jury, unless an issue is raised calling for it

Enough of the testimony has been mentioned to show that it is more than doubtful that the state has made out a case. The facts to the mind of the writer ought not to sustain this conviction. They are too indefinite, too uncertain, too vague and disconnected to justify a conviction for homicide, even discarding the theory that deceased may have thrown himself from the top of the oil tank. That deceased was not killed at the oil tank it would seem -to be almost certain from the testimony. The state introduced in evidence the statement of the defendant that he had not seen deceased after he left him at 2:20 o’clock on said night, and, outside of the fact that appellant was with him at 2:20 o’clock when they separated and deceased went away, any other man in Kerrville coulld have as well been charged with this homicide. There are too many particulars in evidence, and possibilities and probabilities from the facts, for others to have committed this crime, if in fact it was a homicide, to say, under the rules of circumstantial evidence, that it excluded every reasonable conclusion except the guilt of the defendant. Two men were seen running away rapidly from the direction where the body of deceased was found; the disappearance of the burglars after this occurrence; the great number of strange Mexicans in the town, who had equal opportunities to kill the deceased; that he was not killed Saturday night; body was not at the oil tank on Sunday ; and other facts — render appellant’s guilt too obscure, uncertain, and improbable to authorize affirmance or conviction. There was no evidence that appellant had seen deceased after he left him at 2:20 o’clock, and this renders the facts in this case too uncertain in the opinion of the writer to authorize his conviction. The jury seemed to have entertained the same idea of uncertainty. Conceding the deceased came to his death at the hands of some one by violence inflicted upon the head, it was evidently done for the purpose of robbery; it was done at the dead hours of night. This would make the homicide an atrocious murder, yet the jury gave appellant only 26 years. They, found upon tlie person of appellant no money or blood, and there was no sufficient evidence of his having killed or participated in the killing of deceased.

The judgment is reversed and the cause remanded.

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

We concur in the reversal of the case, but do not think the evidence that prior to this time such residences had been burglarized at nighttime was admissible. It tended to shed no light on who committed this murder, and the court did not err in excluding such testimony.

PRENDERGAST, P. J.

I am also of the opinion that the state’s witness Leartie Butler, by the questions asked her by appellant’s attorneys on cross-examination when the state examined her the second time, was a direct attack of her, charging that the testimony she gave this second time was from corrupt motives and fabricated between the time she first testified and this time. Such being the ease, the state clearly could support her, and it was its duty to do so, by showing what she testified at the coroner’s inquest, as the state did. Jones v. State, 38 Tex. Cr. R. 103, 115, 40 S. W. 807, 41 S. W. 638, 70 Am. St. Rep. 719; English v. State, 34 Tex. Cr. R. 200, 30 S. W. 233; Mitchell v. State, 36 Tex. Cr. R. 302, 33 S. W. 367, 36 S. W. 456; Reddick v. State, 35 Tex. Cr. R. 469, 34 S. W. 274, 60 Am. St. Rep. 56; Akin v. State, 56 Tex. Cr. R. 329, 119 S. W. 863; Fondren v. State, 169 S. W. 426; Branch’s Criminal Law, § 876.
      e=>Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      @=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, J.

text:
    WILLIAMS v. STATE.
    (No. 3573.)
    (Court of Criminal Appeals of Texas.
    June 2, 1915.
    Rehearing Denied June 25, 1915.)
    1. Criminad Law <&wkey;1064^-APi>EAi^-ScoPE oi' Review.
    Only those grounds for a new trial assigned in the motion therefor can be considered on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2676-2684; Dec. Dig. <&wkey;> 1064.]
    2. Oeiminai, Law &wkey;>566 — Sufficiency op E viden oe — Punishment .
    On a trial for murder, evidence held sufficient to warrant the jury in finding that accused was more than 17 years old and hence to warrant the assessment of the death penalty.
    [Ed. Note. — For other cases, see Criminal Law, Cent Dig. §§ 1273-1275; Dec. Dig. &wkey; 566.]
    Appeal from District Court, Tarrant County; Jas. W. Swayne, Judge.
    Clint Williams was convicted of murder, and he appeals.
    Affirmed.
    S. B. Cantey, Jr., C. W. Wade, and David B. Trammell, all of Ft. Worth, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was found guilty of murder, and the death penalty assessed.

The facts would show that appellant stole a pistol from E. R. McComb on the day of the murder; that he induced Oscar Scroggins to take him riding on his (Scroggins’) motor cycle, with a view to him buying the motor cycle. When they got out into the suburbs of Ft. Worth, on the farm of E. R. ICeller, in the edge of some timber, he shot Scroggins in the back, then threw him in a well. The condition of Scroggins’ lungs, when the body was found, shows that he was not dead when thrown into the well, but Dr. Tadlock says that Scroggins would have no strength left to resist being thrown into the well after receiving the wound he did.

In the record there are no bills of exception reserved to the introduction or exclusion of any testimony. No exceptions were reserved to the charge of the court as given, and no special charges requested. In the motion for a new trial there are but four grounds assigned. The first alleges the verdict is contrary to the law; the second, that the verdict is contrary to and against the evidence; the third, that the evidence is insufficient to sustain a verdict for murder; while the fourth is, that if the evidence shows appellant to be guilty of murder, it fails to show that he is 17 years of age, therefore the death penalty cannot be sustained under the law.

These being all the grounds assigned in the trial court, we cannot consider the various grounds raised for the first time in the brief filed in this court by appellant’s able counsel, but can only consider those grounds assigned in the motion for a new trial in the trial court.

If appellant is 17 years of age, the evidence fully and amply sustains the verdict finding him guilty of murder. The body was found at the place pointed out by appellant; also the pistol, and the motor cycle of Oscar Scroggins were found in Ms possession. It was a brutal murder, committed solely for the purpose of obtaining possession of the motor cycle, which axipellant said when he went to the home of Mr. Keller he had purchased. The question of the age of appellant is a most serious one. Our law provides that the death penalty shall not be assessed against any person under the age of 17 years. Mrs. Keller and Mrs. Simmons both testify that they have known appellant since his birth, and they say he was born July 14, 1899. If so, he would he under 17 years of age. They, in part at least, tie their memory to the date written in the family Bible. This entry was made by Mrs. Keller, so she testifies. The entry is: “Clint Aubrey Williams (colored) was born July 14, 1899.” The contention of the state is, however, that the last “9” was originally written “7”, and if so, appellant would be 18 years of age on the 14th of next July, and past 17 at the date of the commission of this offense. The last “9” is blurred and written heavier than the remainder of the figures. Mrs. Williams says the reason of this is the entry being made with a pencil the date had become dim, and she had traced it again in 1911. A magnifying glass was used on the trial, and the jury was permitted to examine this date with the magnifying glass. Appellant had represented himself prior to the killing to be 20 years of age. Mr. Calloway testifies that he is now probation officer; that prior thereto he was county superintendent, and was a school teacher for a number of years; had known appellant for some 8 or 9 years, and saw him frequently; that in his opinion appellant was 18 or 19 years of age. The jury had a view of appellant at the time of the trial; they had the magnifying glass to examine the entry in the Bible to determine whether the original entry was 1897 or 1899. These matters are not before us, and as they found against appellant on this contention, we do not feel authorized to say they were not justified in finding as they did on this contested issue. Wilcox v. State, 33 Tex. Cr. R. 392, 26 S. W. 989; Ellis v. State, 30 Tex. App. 601, 18 S. W. 139.

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


text:
    BELL v. STATE.
    (No. 3561.)
    (Court of Criminal Appeals of Texas.
    May 26, 1915.
    Rehearing Denied June 23, 1915.)
    1. Indictment and Information <®=»125 — Joinder of Offenses.
    Under Pen. Code 1911, art. 1327, defining “robbery” and increasing the punishment, if, in making the assault, a firearm or deadly weapon is used, an indictment that defendant did make an assault on J. S., and by said assault and by violence, and putting in fear of life by the use of firearms, did fraudulently take from S. certain property, charges but one offense — robbery by the use of firearms.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 334-400; Dec. Dig. &wkey;M25.]
    2. Robbery <&wkey;24 — Evidence-—'Weight and Sufficiency.
    In a prosecution for robbery by the use of firearms, where defendant repossessed himself of property taken from him under a writ of sequestration, evidence held to justify a finding that defendant knew that the person robbed was a constable and had such writ".
    [Ed. Note. — For other cases, see Robbery, Cent. Dig. §§ 82-30; Dec. Dig. &wkey;24.]
    3. Robbery <g=»17 — Indictment—Ownership of Goods.
    Property levied on by an officer being in his exclusive possession, ownership may be alleged in him in an indictment for robbery.
    [Ed. Note. — For' other cases, see Robbery, Cent. Dig. §§ 16-23, 26; Dec. Dig. <&wkey;>17.]
    Appeal from District Court, Rusk County; W. C. Buford, Judge.
    Willie Bell was convicted of robbery, and he appeals.
    Affirmed.
    Futch & Tipps and R. T. Jones, all of Henderson, for appellant. C. C. McDonald,.Asst. Atty. Gen,, for the State.
   HARPER, J.

Appellant was convicted of robbery and his punishment assessed at seven years confinement in the state penitentiary.

The indictment against appellant alleges that he did make an assault on Jim Smith, and by said assault and by violence and by putting Smith in fear of life by the use of firearms, etc., did fraudulently take from Smith certain property. Appellant contends that this indictment charges two offenses in one count, and cites us to Murdock v. State, 52 Tex. Cr. R. 262, 106 S. W. 374, in which it is so held, and, if the indictment did seek to charge two offenses in one count, of course, appellant’s motion to quash should have been sustained. The indictment is' brought under article 1327 of the Penal Code, defining robbery. After stating that the offense may be committed by assault, by violence, and by putting in fear of life or bodily injury, the statute further provides that if in making the assault, etc., a firearm or deadly weapon is used, the punishment shall be more severe than if the robbery is committed by assault, etc., without the use of firearms. It would be impossible to charge robbery by the use of firearms without also alleging that in using the firearms an assault was made, violence used, or the person assaulted was put in fear of his life by the means used. The statute simply provides that, if firearms are used in the commission of the offense, a more grave punishment may be inflicted if the jury see proper to do so-. This question was thoroughly discussed in the case of Green v. State, 147 S. W. 593, on motion for rehearing, and we do not deem it necessary to do so again. The indictment charges only one offense — robbery by the use of firearms.

The facts in the case would show that appellant was indebted to Arthur Sanders and A1 Alston, and had given them mortgages on property described in the mortgages to secure their debts. Mr. Sanders’ mortgage was taken after the mortgage had been given to Mr. Alston, and Sanders purchased the Alston mortgage. After doing so he brought suit in the county court to foreclose the mortgages, and sued out a writ of sequestration, placing the writ in the hands of Constable Jim Smith. Mr. Smith went to appellant’s home. Only appellant’s wife was at home; he having gone hunting. Mr. Smith told appellant’s wife what was his business, and proceeded to levy on two mules, wagon, and other property, and undertook to carry it off. Appellant’s wife went to the woods hunting for her husband. When she found him, she told appellant Mr. Smith had been there and took the property. When appellant was informed that Smith had taken the property and was on his way to Bine Ilill with it, lie secured a mule from a neighbor and overtook Smith about five or six miles on the road to Pine Hill. Up to this point there is no disagreement in the evidence; from this point on there is a divergence. Smith says when appellant overtook him appellant asked, “What in the hell does all this mean?” and that he then told him he had papers for the property, and that Mr. Sanders had sent him after it; that appellant got in front of him, threw his gun in his face, and said, “Turn this team, you G — d d-n son of a b-h, or I’ll blow your brains out right there in that wagon.” Some other words passed, and Smith says appellant compelled him to turn and drive the stuff he had levied on back near to his home. These are the acts relied on to show robbery.

Appellant admits his wife came tp him and told him Smith had taken the property, but denies lie knew that Smith was an officer, or that he had any writ. He admits he got a mule and overtook Smith, and had a gun, but denies that he pointed the gun at Smith, and denies that Smith then told him he had a writ, but he says when he overtook Smith he asked what he was doing with his property, and Smith told him Arthur Sanders had sent him to get the property. Appellant denies that he knew Alston had transferred his mortgage to Sanders, and there is nothing in the record to show that he did know it. Appellant says he told Smith that Sanders had no right to the property, that Alston had a mortgage on it, and under an agreement with Alston he was to keep the property for Mm, Alston, until they could see if they could make a trade for the next year, and he did not want the property taken away until he had conferred with Mr. Alston, saying he told Smith that after he saw Alston, if Sanders had any right to take the property, they could come and get it Monday morning.

Appellant’s defense is he, in repossessing himself of the property, did not know that Smith was an officer, and that he took it from Smith to hold for Alston, not knowing that Sanders had purchased the mortgage. On this issue the court instructed the jury:

“If you find from the testimony that the defendant took the property from Jim Smith, but at the time he did so he did not know that Jim Smith was an officer and had taken the property under a writ of sequestration issued by a court of competent jurisdiction, and that he took said property for the purpose and with the intent to have it or its value applied to the payment of the debt he owed Alston, then you will find the defendant not guilty. The law presumes the defendant to be innocent until his guilt is established by legal evidence to the satisfaction of the minds of the jury beyond a reasonable doubt. The burden of this proof is upon the state, and in case you have a reasonable doubt of the defendant’s guilt you will find him not guilty.”

Also, at the request of appellant, he gave the following special charge:

“You are charged, as a part of the law in this case, that among the essential elements necessary to constitute the offense of robbery is that there must be a fraudulent intent in the taking of the property at the time. A fraudulent taking is a taking of property with an intent to deprive a person of property that belongs to another. Now you are instructed that, if you believe from the evidence in this case that the property was taken by defendant, if it was, still if you believe that there was no fraudulent taking, and if the defendant took same under an honest claim of right, believing that it was his property, or that he had a right to hold same for AÍ Alston, then you will find the defendant not guilty.”

This was a fair and full presentation of the defensive matter made by defendant’s testimony. According to the state’s case appellant repossessed himself of the property by force; took it away from an officer who had made a lawful levy thereon. Appellant does not deny taking the property from the officer, and does not deny holding it after he knew the officer had levied thereon, but says he did not learn of the levy until they got nearly back to his home, but when he learned of the levy, if he did not learn of it until then, he kept the property, telling the officer he would investigate the matter, and if Mr. Alston said Sanders had a right to it he could get it the next Monday. There are no bills of exception in the record to the introduction of testimony, although some complaint is made in the motion for a new trial. This would not be verified in a way we would be authorized to consider it. There was no exception reserved to the charge of the court at the time it was submitted to counsel, but exceptions are reserved to the failure of the court to give a number of special charges requested.

Appellant requested the court to instruct the jury that the property was not the property of Smith, in whom the ownership was alleged, and to acquit appellant. Property levied on by an officer is in his exclu-' sive possession, and therefore ownership may be alleged in him. Article 1335 specifically provides that one may be guilty of theft of property owned by him where he takes it from an officer of the law, where the property is in possession of the officer by virtue of process issued out of a court of competent jurisdiction. In this case there can be no question the county court had authority to issue the writ of sequestration. And it is provided by articles 1333 and 1334 that ownership may be alleged in the person having actual control, care, and management of the property at the time it is taken.

The other special charges, in so far as they are the law of the ease, were fully covered by the court’s main charge. The evidence in this case presents a rather strange case. An officer rightfully levied on the property. Without investigation the owner of the property, thinking Alston had a superior claim to the property, took it from the officer, as he contends. If that be true, it seems a rather harsh rule of law that would hold him guilty of robbery, yet the law cannot and does not sanction the taking of property from an officer at the point of a shotgun. Out of such proceedings a killing often grows, and the law does not sanction the use of force by anyone to repossess himself of his property, although he might think another had the superior right to it. Courts are provided to adjudicate these questions. If appellant did not know Smith was an officer who had legally levied on the property, the felonious intent might be lacking. But the court requires the jury to find that appellant was aware of that fact, and Smith testifies that he so told appellant, and under such circumstances we do not feel authorized to disturb the verdict. If it is a fact that a part of the property was not covered by the mortgage, it is certain a portion of it — -the mules and wagon — was covered by it, and the writ of sequestration, and appellant took property from the officer that was covered by the writ and mortgage. This he had no right to do, if he knew he was an officer, and had levied on it under a writ in his possession.

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


author: PRENDERGAST, P. J.

text:
    GOODMAN v. STATE.
    (No. 3592.)
    (Court of Criminal Appeals of Texas.
    June 9, 1915.)
    Indictment and Information <&wkey;125 — Join-der of Offenses.
    Under Pen. Code 1911, art. 1327, defining robbery, and increasing the punishment if in making the assault a firearm or deadly weapon is used, an indictment that defendant did make an assault on a person named, and by said assault and by violence and putting in. fear of life by the use of firearms did fraudulently take from Mm certain property, is not had as charging two offenses in one count.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 384-400: Dee. Dig. &wkey;125.]
    Appeal from Criminal District Court, Dallas County; W. L. Crawford, Jr., Judge.
    R. Goodman was convicted of robbery with firearms, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of robbery with firearms, and his punishment assessed at 99 years in the penitentiary. The indictment was good, and followed the statute and approved form. Green v. State, 147 S. W. 593; Bell v. State, 177 S. W. 966, recently decided. There is no statement of facts nor bills of exceptions that can be considered in the absence of a statement of facts.

The judgment is affirmed.


text:
    SPARKS v. STATE.
    (No. 3582.)
    (Court of Criminal Appeals of Texas.
    June 9, 1915.)
    1. Robbery t&wkey;20 — Indictment — Issues — “Lawful Money of the United States.”
    A charge that one robbed another of “lawful money of the United States” is sustained by proof that the accused took “dollars” in money.
    [Ed. Note. — For other cases, see Robbery, Cent. Dig. § 27; Dec. Dig. &wkey;>20.]
    2. Criminal Law <&wkey;566 — Evidence—Sufficiency — Identity of Person Robbed.
    Evidence held, insufficient to establish the identity of the person robbed with the person named in the indictment as having been robbed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1273-1275; Dec. Dig. &wkey; 566.]
    Appeal from District Court, Wichita County; Edgar Scurry, Judge.
    Jim Sparks was convicted of robbery, and appeals.
    Reversed and remanded.
    Fletcher S. Jones, of Wichita Falls, for appellant. O. C. McDonald, Asst Atty. Gen., for the State.
   HARPER, J.

Appellant was indicted in this case, charged with robbing “John Noles of $7, lawful money of the United States of America.” When convicted, he prosecuted an appeal to this court, alleging that' the evidence is insufficient to sustain the conviction, and the court erred in not giving the special charges requested so instructing the jury.

J. C. McDaniels testified that he saw appellant and Charles Eshelman feeling through an old man’s clothes who had just gone out of his saloon; that the old man was begging them to leave him 60 cents to get his breakfast with; that one of them said, “Be quiet or I will knock your head offthat he (witness) ran out there, when appellant and Esh-elman ran, when he called the police; that the old man said they got his money — he said they got about $6.

The first contention is that, as the indictment charges that the money “was lawful money of the United States of America,” this was descriptive of the money alleged to have been taken, and therefore it was necessary to prove that the money taken was lawful money of the United States of America, and as no witness so testified the proof would not sustain a conviction. We are aware that we have some cases so holding, while we have cases holding otherwise. We do not deem it necessary to cite either of the line of cases, but will say that in our opinion Judge Davidson correctly laid down the true rule in Menear v. State, 30 Tex. App. 475, 17 S. W. 1082. In that case the indictment alleged in a case of robbery that the property taken was “10 cents in the money of the United States of America.” The only evidence was the accused had taken 10 cents in silver, and it was held to be sufficient to sustain the allegation in the indictment. The United States, so far as we are aware, is the only country that now divides its money into and denominates its money dollars and cents. In England we have pounds, shillings, and pence; in Germany, marks and pfenige; in France, francs and centimes; in Spain, pesetas and céntimo; in Mexico, peso and centavos. So, when one swears another : took from him $6 in money, it necessarily conveys the idea that he had taken money of the United States of America. If the evidence suggested that any other circulating medium used as money was taken, then, of course, it would he incumbent on the state to prove that it was “lawful money of the United States of America.” No other construction could he placed upon such language, and we think that line of cases is correct which holds that when the allegation is that one took money, lawful money of the United States of America, and the proof is that the person took so many dollars in money, the evidence sufficiently proves the allegation. If it was not money of the United States, the allegation would be that he took so many pounds, marks, pesetas, pesos, or francs, current and passing as money. When we say one took from another $6 in money in this country, it means and conveys the idea, and only the idea, that he took money of the United States of America. Judge Henderson, in the case of Berry v. State, 46 Tex. Or. R. 420, 80 S. W. 630, discusses this question at length and digests the various decisions. In Ferrell v. State, 68 Tex. Or. R. 495, 152 S. W. 901, after discussing the question at length, this court held that such proof was sufficient to sustain such allegation, and expressly stated: “All cases in conflict herewith are hereby overruled.” We see no reason to change our opinion. It is true that there was in circulation in the seventeenth and eighteenth centuries in Spanish America what was termed the Spanish “milled dollar,” or “pillar dollar,” so called from the figure of the “Pillars of Hercules” thereon, and in our first coinage laws, after our independence, our dollar was made of the same weight and value. But it has been many years since the “pillar dollar” was in circulation to any considerable extent in the United States, and it was not called a dollar in Spain, but was called pesetas or peso. No such dollar is now in circulation in this country.

Another question is presented, however, as to the sufficiency of the evidence. The indictment alleged that the money was taken from the possession of John Noles, and it was, therefore, necessary to prove that it was taken from the person named. Mr. McDaniels testified that he saw appellant and Charles Eshelman going through the clothes of an old man, and that the old man said they got $6 from him; that he did not know the name of the old man, and did not know that he was named John Noles; that he did not know where the old man is now. It is thus seen that this witness would not and could not identify the man whom he says was robbed as the man named John Noles. He swears positively he did not know his name, and did not now know where he was at the time of the trial. The only other witness introduced was Sheriff Hawkins, who testified:

“I know that John Noles is dead. He died about two weeks from the alleged robbery from natural causes.”

One might infer from this that the man who died was the man who was robbed, but it would simply be an inference. John Noles may have died two weeks after the alleged robbery, but there should have been some proof offered that he was the old man Mc-Daniels says he saw defendant and another rob. On another trial it should be shown that John Noles, the dead man, was the old man whom McDaniels saw robbed, if that is a fact. It should be shown in some way that the man robbed was named John Noles and, as there is no evidence in this record to prove that fact, the case must be reversed.

The judgment is reversed, and the cause remanded.

DAVIDSON, J. I think the case ought to be reversed on both grounds.
      (gs^For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    ESHELMAN v. STATE.
    (No. 3596.)
    (Court of Criminal Appeals of Texas.
    June 9, 1915.)
    Appeal from District Court, 'Wichita County; Edgar Scurry, Judge.
    Charlie Eshelman was convicted of robbery, and .appeals.
    Reversed and remanded.
    Bernard Martin and E. S. Jones, both of Wichita Palls, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appelant was convicted ’Of robbery; his punishment being assessed at five years’ confinement in the penitentiary.

This is a companion case to Jim Sparks v. State, 177 S. W. 968, this day decided, involving the same question, and some other matters. On the authority of Sparks v. State, the judgment herein will be reversed and remanded.


text:
    ALBERTSON v. STATE.
    (No. 3616.)
    (Court of Criminal Appeals of Texas.
    June 16, 1915.)
    Cbimtnal Law &wkey;>1097 — Questions Reviewable — Statement oe Pacts.
    In the absence of a statement of facts, refusal of charges will not be reviewed.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2862, 2864, 2926, 2934, 2938, 2939, 2941, 2942, 2947; Dec. Dig. &wkey; 1007.]
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    O. R. Albertson was convicted of passing a forged instrument, and he appeals.
    Affirmed.
    O. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of passing a forged instrument, and his punishment assessed at two years’ confinement in the penitentiary.

No bills of exception are contained in the record before us. Three special charges requested and refused appear therein, but in the absence of a statement of facts it is impossible for us to determine whether or not they should have been given.

The judgment is affirmed.
      ig^jPor other oases see same topic and KBY-NUMBER in ail Key-Numbered Digests and Indexes


text:
    STINSON v. STATE.
    (No. 3559.)
    (Court of Criminal Appeals of Texas.
    May 26, 1915.
    Rehearing Denied June 23, 1915.)
    Criminal Law <&wkey;l()90 — Appeal — Misdemeanor — Bill of Exceptions.
    Absent bill of exceptions, in a misdemeanor case, only the question of the evidence sustaining the conviction can be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 27S9, 2803-2822,, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig * &wkey;109O.l
    Appeal from Gregg County Court; J. H. Mcl-Ianey, Judge.
    'Uriah Stinson was convicted, and appeals.
    Affirmed.
    E. B. Martin, of Longview, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of unlawfully carrying a pistol, and prosecutes an appeal to this court.

No bills of exception are contained in the record, and, this being a misdemeanor, the only question that can be considered is whether the evidence will sustain the conviction. We think it does do so, and the judgment is affirmed.


text:
    FORD v. STATE.
    (No. 3607.)
    (Court of Criminal Appeals of Texas.
    June 16, 1915.)
    Criminal Law <&wkey;1206 — Punishment—'Verdict and Sentence.
    The verdict being for two years, the court cannot, under the indeterminate sentence law, pronounce sentence of not less than two years nor more than five years; for the punishment cannot exceed that fixed by the jury, and, if this exceeds the minimum, the sentence should be not in excess of that fixed by the jury, nor less than the minimum.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. 3271-3277, 3279, 3280; Dec. Dig. <&wkey;120Q.]
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Squire Ford was convicted, and appeals.
    Corrected and affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

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

In the absence of statement of facts and bills of exception, there is nothing presented in the motion for new trial that can be reviewed.

The verdict of the jury was for two years. The court pronounced sentence on appellant for not less than two nor more than five years. This the court could not do under the indeterminate sentence law. The punishment cannot exceed the amount of punishment fixed by the jury. If it was in excess of the minimum punishment, then under the indeterminate sentence law the sentence should not be in excess of that fixed by the jury, nor less than the minimum punishment.

With this correction, the judgment will be affirmed.


text:
    CLARK v. STATE.
    (No. 3623.)
    (Court of Criminal Appeals of Texas.
    June 16, 1915.)
    Criminal Law c&wkey;109O — Appeal—Statement oe Faots.
    Where no statement of facts is filed, and no bill of exceptions is reserved to any proceeding bad on the trial, there is nothing for review.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. >&wkey;>1090.]
    Appeal from Harris County Court at Law; C. C. Wren, Judge.
    Noble Clark was convicted of unlawfully carrying a pistol, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

When convicted of unlawfully carrying a pistol, appellant gave notice of appeal; hut the record was not perfected, for no statement of facts was filed, and no bill of exceptions reserved to any proceeding had on the trial. Under such circumstances there is nothing we can review.

The judgment is affirmed.


text:
    MOON v. STATE.
    (No. 3605.)
    (Court of Criminal Appeals of Texas.
    June 16, 1915.)
    Criminal Law <&wkey;1095, 1102 — Statement oe If acts — Bill oe Exceptions — Time oe Fil-in».
    Statement of facts and bills of exceptions, filed more than 20’ days after adjournment, will on motion of the state be stricken out.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2847; Dec. Dig. <&wkey;1095, 1102.]
    Appeal from Wood County Court; R. E. Bozeman, Judge.
    J. W. Moon was convicted of unlawfully carrying a pistol, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

This is an. appeal from a conviction for unlawfully carrying a pistol with the lowest punishment assessed.

The statement of facts and bills of exceptions were filed more than 20 days after the adjournment. The Assistant Attorney General’s motion to strike them out must therefore be sustained. In the absence of these no question is raised which can be reviewed.

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


text:
    WILLIAMS v. STATE.
    (No. 3617.)
    (Court of Criminal Appeals of Texas.
    June 16, 1915.)
    Criminal Law <&wkey;1095, 1102 — Appeal — Statement of Facts — Bill of Exceptions —Delay in Filing.
    Under Act March 31, 1911 (Acts 32d Leg. c. 119) § 7, giving the parties to a suit 30 days after the adjournment of the term in which to prepare the statement of facts and bills of exception, and authorizing the court to extend the time, but not so as to delay the filing of the transcript within the time fixed by law, but, if the term may continue for more than 8 weeks, giving 30 days after the entry of final judgment to file the statement of facts and bills of exception, unless the court shall extend the time, a statement of facts and bills of exceptions in a criminal case, tried at a term which continued more than 8 weeks, which were not filed within the time fixed for the filing of the transcript after the motion for new trial was overruled, must be stricken.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2847; Dec. Dig. <@=^1095, 1102.]
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Solomon Williams was convicted of assault with intent to murder, and he appeals.
    Affirmed.
    John M. Cobb, of Houston, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

This appeal is from a conviction for assault with intent to murder.

The term at which appellant was tried convened November 2, 1914, and adjourned January 30, 1915. Therefore the term of court, by law and as a matter of fact, continued more than 8 weeks. Appellant was tried and convicted on November 27, 1914. His motion for new trial was overruled December 12, 1014, at which time he gave notice of appeal to this court. The time for filing a statement of facts and bills of exceptions, under any contingency, expired 90 days after December 12th, which would be March 12, 1915. The bills of exceptions were filed May 1, 1915; the statement of facts, April 28, 1915. Therefore the Assistant Attorney General’s motion to strike them out must be sustained, both under the express provisions of the statute and the many and uniform decisions of this court. Section 7 of the Act of March 31, 1911, p. 266. It is needless to collate the many decisions so holding.

There being nothing that can be reviewed, in the absence of a statement of facts and bills of exceptions, the judgment is affirmed,


text:
    Ex parte CAMPBELL.
    (No. 3632.)
    (Court of Criminal Appeals of Texas.
    June 9, 1915.)
    Bail <&wkey;52 — Amotjni>-Excessive Bail.
    Where the evidence showed no justification for the homicide, an order fixing the bond of the relator at $750 was not erroneous as requiring excessive bail, though relator’s connection with the evidence was shown only by circumstantial evidence.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. § 209; Dec. Dig. &wkey;52.]
    Appeal from District Court, Montgomery County; J. Llewellyn,' Judge.
    Ex parte application by Charlie Campbell to procure the reduction of bail. From a judgment denying relief, relator appeals.
    Affirmed.
    McCall, Crawford & McCall, of Conroe, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

On the night of the 5th of last March, John Holland was killed in his room by having his throat cut. The wounds were of the character that indicated he had been cut with a knife and with an axe. The record before us contains no evidence of excuse or justification fo'r the person or persons who committed t-he act. The evidence against relator and Will Tolbert is wholly circumstantial, but we think of that strength and cogency that authorized binding them to await the action of the grand jury. And taking into consideration the character of the offense shown to have been committed by some one, if the circumstances are such as authorized the court to bind relator over to await the action of the grand jury, the bond fixed by the court at $750 is not excessive, and the judgment is affirmed.


text:
    JONES v. STATE.
    (No. 3603.)
    (Court of Criminal Appeals of Texas.
    June 9, 1915.)
    1. Criminal Law &wkey;5l091 — Appeal—Necessity of Bill of Exceptions.
    That jurors had read a newspaper account of the case, made a ground of motion for new trial, should, for purpose of appeal, be verified by bill of exception.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. <&wkey;>1091.]
    2. Criminal Law <&wkey;916 — New Trial — Not Ready for Trial.
    Defendant cannot, in his motion for new trial, for the first time complain that he was not ready for trial, but should have moved for postponement or continuance.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2152-2158; Dec. Dig. <&wkey;> 916.]
    3. CRIMINAL Law <&wkey;938 — New Trial — Newly Discovered Evidence.
    Testimony of previous good character is not newly discovered, for purpose of new trial.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2306-2315, 231T; Dec. Dig. <@=>988.]
    4. Criminal Law <&wkey;1091 — Appeal—Necessity oe Bill oe Exceptions.
    That remarks were made by the prosecuting attorney, and excepted to, should for appeal be shown by bill of exception; allegation of the fact in the motion for new trial not verifying it.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. &wkey;1091.]
    Appeal from District Court, Collin County; M. H. Garnett, Judge.
    J. Bennett Jones, alias J. Bennett, alias Harper, was convicted of theft, and appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of

theft 'of $68 in money, and his punishment assessed at three years’ confinement in the state penitentiary.

The evidence sustains the verdict, and this ground of the motion for new trial is without merit.

The fact that “several of the men who served on the jury had read a newspaper account of the case and might have been prejudiced against appellant” is- not verified in any way, there being no bill of exception in the record.

If appellant was not ready for trial, he should have moved to postpone or continue the case, and not wait until after verdict to present such question for the first time in Ms motion for new trial. Testimony of previous good character would not be newly discovered testimony.

The allegation in the motion for new trial that the prosecuting officer used certain remarks does not verify that fact If it is true that such remarks were made, and excepted to by appellant, that fact should have been shown by a proper bill of exception.

The judgment is affirmed.
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