text:
    SCOTT v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 12, 1913.)
    1. Perjury (§ 11) — False Statement Be-eobe Grand Juey — Answer to General Question.
    That the question asked of a witness before the grand jury is too general to form a basis for his impeachment will not preclude a false answer from being ground fofc a conviction of perjury.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 38-54; Dec. Dig. § 11.]
    2. Perjury (§ 32) — Evidence—Proceedings Before Grand Jury.
    In a prosecution for perjury based on a false statement, made by defendant as a witness before the grand jury, that he knew of no gambling, testimony of the foreman of the grand jury that they informed defendant that they had strong evidence that there had been gambling in which he was implicated, or of which he knew, and that they repeatedly urged him to tell the truth and gave him time to consider before signing his statement, was admissible on the issue whether defendant’s testimony before the grand jury was deliberate, and not under agitation, mistake, or failure of memory.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 108-116; Dec. Dig. § 32.]
    3. Perjury (§ 32) — Evidence—Gambling-.
    Where an indictment for perjury, based on defendant’s denial as a witness before the grand jury that he knew of any gambling, alleged that he knew of gambling between certain parties at a certain place about May 1st, it was error to admit evidence that he knew of gambling át a different place on about August 1st, especially where it did not appear that the participants in both games were the same.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 108-116; Dec. Dig. § 32.]
    4. Perjury (§ 37) — Instructions—Evidence —Gambling.
    Where the indictment, in a prosecution for perjury based on a false denial that defendant knew of gambling, charged him with knowledge that a particular game was played, and evidence was admitted showing that he knew of the playing of an entirely different game, it was error to refuse to instruct that the jury could not convict upon proof of any game except that alleged in the indictment.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 134-138; Dec. Dig. § 37.]
    5.Criminal Daw (§ 656) — Remarks of Court.
    Under Code Cr. Proe. 1911, art. 787, prohibiting the court from expressing any opinion about testimony, where, in a prosecution for perjury, a witness for the state appeared reluctant to testify, it was error for the court to state in the jury’s presence that the witness appeared to be evading the truth and to threaten to punish the witness, and to state to defendant’s counsel that, while he would give them any exception they wanted, he was “not going to have the witness interfered with.”
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1524-1533; Dee. Dig. § 656.]
    6. Criminal Law (§ 657) — Conduct oe Court — Punishment oe Witness.
    Under Code Cr. Proc. 1911, art. 787, prohibiting the court from expressing his opinion about testimony, whenever it becomes necessary to punish a recalcitrant witness, he should retire the jury before doing so, in order that they may not be affected injuriously against accused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1534; Dec. Dig. § 657.]
    7. Criminal Law (§ 898) — Conduct oe Court — Cure oe Error.
    Where the court, in a prosecution for perjury¡ by his remarks in the jury’s presence concerning two witnesses and also by punishment of the one who proved recalcitrant, clearly indicated to the jury that he believed the witnesses were evading the truth or testifying falsely, the matter was not cured by his subsequent instructions that the jury not consider such matters.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2118-2121; Dec. Dig. § 898.]
    8. Criminal Law (§ 772) — Instructions— Venue — Gambling.
    Where, in a prosecution for perjury based on defendant’s denial -as a witness before the grand jury that he knew of any gambling in the county where the grand jury was sitting, the evidence left it doubtful whether the game 0⅜ which defendant knew was not played in another county to which the grand jury would have had no right to extend its investigation, it was error to refuse to instruct that defendant should be acquitted unless the gambling occurred in the county where the grand jury was sitting.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1812-1814, 1816, 1817; Dec. Dig. § 772.]
    Appeal from District Court, Hamilton County; J. H. Arnold, Judge.
    Walter Scott was convicted of perjury, and appeals.
    Reversed and remanded.
    H. E. Trippet, of Hico, and Eidson & Bid-son, of Hamilton, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, J.

Appellant was convicted of perjury; liis punishment being assessed at two years’ confinement in the penitentiary.

The indictment is attacked because the questions asked by the grand jury of the witness were too general. The allegation is that appellant appeared before the grand jury, and was asked whether he had at any time within the last two years next preceding the 2d day of September, 1912, in Hamilton county, played at any game played with dice upon which money was bet, and whether he had seen any game played with dice upon which money was bet in Hamilton county, Tex., within the last two years; and in reply he testified that he had not played at any game played with dice upon which money was bet in Hamilton county within the last two years, and had not seen any person or persons play at any game played with dice upon which money was bet in Hamilton county at said time. The traverse is that appellant well knew that he had played and did in Hamilton county and state of Texas on or about the 1st day of May, 1912, play at a game played with dice commonly called craps and upon which money was bet, and especially had the said Walter Scott played at a game played with dice commonly called craps and upon which money was bet and with Billy Cole, Billy Rhoades, Vernon Smith, and other persons in Hamilton county within two years next preceding the said 2d day of September, 1912, to wit, on or about the 1st day of May, 1912, which said statement, etc., was false, etc.

Appellant says the indictment is insufficient because the questions are too general, and not sufficient even as a predicate for impeachment. In support of his proposition he cites Meeks v. State, 32 Tex. Cr. R. 420, 24 S. W. 98; and McMurtry v. State, 38 Tex. Cr. R. 523, 43 S. W. 1010. In McDonough v. State, 47 Tex. Cr. R. 227, 84 S. W. 594, 122 Am. St. Rep. 684, upon the point insisted upon by appellant, the Meeks and McMurtry Cases were overruled or qualified in such manner as to hold them no longer authority for the proposition asserted by appellant. The McDonough Case had been followed on this particular question. See McDonough v. State, supra. We hold therefore, in this respect, the position of appellant is not sound, and the indictment is sufficient.

By a bill of exceptions it is made to appear that Smith, foreman' of the grand jury, was permitted to testify as follows: “We (the grand jury) had pretty positive evidence that there was gambling going on, and the same evidence that he was implicated in it. We informed the defendant of this fact. We informed him the second time that we had pretty positive evidence, or positive evidence, that lie was in the gambling or knew of it.” Objection was urged to this because it was but the opinion and conclusion of the witness that the defendant was guilty, and it -was also getting before the jury the opinion of the witness and also of the other grand jurors the opinion of said witness and said grand jurors that the defendant, while a witness before the grand jury, had testified falsely about the matter for which he was indicted. The bill is qualified in this way: “As is shown in the bill, the grand jury informed the defendant of the facts that had come to its knowledge and put him in possession of the facts that had come to the grand jury’s knowledge as they had come to the grand jury, as is shown on page 3 of the statement of facts. Eor this reason, and the further reason that I regarded the evidence as a part of the res gestae,.I admitted the testimony. With this explanation the bill will be allowed and is ordered filed and made a part of the record.” This is signed by the judge.

The statement of facts, to which reference is made by the judge, shows this: “We had Scott subpoenaed before the grand jury in regard to reports of gambling that had oeen reported over there, and on his first examination he said he had not been implicated in gambling and had not since he had returned from the Navy, and he said something about that he had tried to reform, and we had pretty positive evidence that there was gambling going on and the. same evidence that he was implicated in it. (Objects to this last statement and sustained.) We informed the defendant of this fact. We informed him the second time that, we had pretty positive evidence, or positive evidence possibly, that he was in the gámbling or knew of it, and we warned him and took particular pains to warn him; in fact he was our town boy. I told him it was. reported and we had positive evidence or pretty positive evidence that he was- implicated and knew of gambling and was implicated in it, and I told him that I would be glad if he would ‘come clean’ in the matter in order to save any further trouble. He was before the grand jury twice the same evening, I think.' Maybe once the next morning. We told him to go out and try to refresh his memory and see if he could not recall things in regard to gambling, if he did not know of gambling, and if he had not been implicated in games, and to go out and study over the matter before signing the statement. He did so retire and then came back again. X could not tell how long intervened from the time he retired until he returned, but it was something like an hour or two. When he returned the second time, he was again warned and cautioned by .myself and the county attorney about like he was the first time. The second time he came in there he was warned as I stated,' and when we told him that we had positive evidence that there was gambling going on over there, and that he knew about it, and that he had been implicated in it, and that we would be glad if he would make a clean breast of the matter, and then he signed this statement the last time.”

Under ordinary circumstances this character of testimony would be inadmissible; but appellant in this case was put upon notice of the fact that he was suspected of being implicated in the games and knew of the fact that the games had been played, and he was a party to them, and we are of opinion it was not error for them to testify they called his attention to these matters. It bore upon the question of whether his testimony before the jury was deliberate and tended to show that it was not under agitation or mistake or failure of memory. Usually this character of testimony is not admissible; but, under the peculiar circumstances surrounding this matter as it occurred in the grand jury room, we are of opinion that the court did not err in admitting it.

Another bill recites that Vernon Smith was a witness for the state, and, after he had testified in reference to the game of dice alleged in the indictment, the court permitted said witness to testify that he played dice with the defendant on which money was bet, about the 1st of August of last year at the compress in the town of Hico, Hamilton county; the defendant’s objection being that there was no allegation in the indictment in reference to that game, the game alleged in the indictment being the one played about the 1st of May in which Billy Cole, Billy Rhoades, Vernon Smith, and the defendant were engaged. These objections were overruled by the court.

The court was also asked to instruct the jury that they could not convict the defendant upon proof of any game except the one alleged in the indictment, which the court refused to do. We are of opinion this testimony was inadmissible; but, inasmuch as it had been admitted, the court should have instructed the jury as requested by appellant. The game or playing which formed the predicate for perjury is alleged to have occurred with the parties named about the 1st of May at a different place and somewhere outside of the town of Hico from a mile to three miles. The game here inquired about was in August in the town of Hico at a compress. The judge qualifies this by saying he did not regard the date as of the essence of the matter, and would have admitted proof of any game in Hamilton county played with the parties named on any date within two years-before the defendant testified. The indictment charging perjury, and the state having selected the particular transaction about which the perjury was committed and which formed the basis of it, it would be bound to adhere to it, and besides there is nothing here to indicate that the game played in August was between the same parties, at least it is not so shown by the bill of exceptions or the qualification of the judge. He does recite Vernon Smith, the witness, was in both games; but that would indicate the other parties were not in the August game.

Another bill recites that, while Billy Cole was on the stand and being interrogated by the district attorney, he was asked how far it was from the town of Hico to the place the game was played, and the witness said he-did not know the distance, that it was in the nighttime, and he did not know how far it was; and after the district attorney asked the witness several leading questions, and he still testified that he did not know the distance, the court stated, in the presence and hearing of the jury, “It occurs to me, gentlemen, that this is an effort to evade the truth,” and then stated to said witness: “Unless-you give more definite answers, I am going to punish you. We cannot be browbeaten around in such way as this.” The appellant attempted to except to the remarks of the-court, and the court stated, “I will give you any exception you want, but I am not going to have the witness interfered with.” To all this matter defendant reserved exception for the reason the statement and remarks of the court were error and highly prejudicial to the-defendant, in that the statement conveyed to the jury the opinion of the court that the-witness was testifying falsely, and was a comment upon the weight of the evidence and the credibility of the witness, and was tantamount to the expression of the opinion of' the court to the jury that the game of dice was-played in Hamilton county and that the witness knew such fact; and the statement, “I will give you any exception you want, but I am not going to have the witness interfered with,” was an intimation to the jury that the defendant or his counsel was in some way responsible for the false testimony of the witness, and the statement of the court was calculated to and did influence and intimidate-the witness, as said witness after the statement by the court testified that the game was-played in Hamilton county, and he located the place on the plat or map exhibited to him-showing that the game was played in Hamilton county; he having before that time repeatedly said that he did not know the place where the game was played and could not locate it on the map presented to him. The court qualifies this bill, or explains it rather, by stating that: “The witness was unfriendly to the state and displayed a spirit of stubbornness and reluctance to testify to anything definite and specific, although his testimony before the grand jury was definite and specific as to the place where the game of dice was played and this testimony was presented to him to refresh his memory. The witness evaded the state’s questions as to where the game was played and refused to point out the place on a plat with which he was familiar. He was clearly testifying in a way which, if permitted, would make the courts a farce and mockery, and I regret that the necessity arose for me to reprimand him as I did. If the court has not the power to compel witnesses to tell the truth and it is error to do so, it is more the court’s misfortune than fault. However, I instructed the jury to dismiss what the court said to the witness from their minds and not to regard it as any comment on his credibility, and withdrew the occurrence from the jury and charged them to not consider it in any way against the defendant. I did not intend to reflect on counsel who made the objection. I cheerfully testify to their high character and uniform courtesy to the court and regret that the court’s action was construed by them as a reflection. I disclaim any such purpose. Furthermore, the witness was a state’s witness, and defendant’s attorneys made use of the incident referred to in the bill in argument as one going to weaken the weight to be given to the testimony and in that way turned it to advantage before the jury. With this explanation the bill is allowed.”

The following bill will be considered in connection with the one just mentioned. Tom Woods was a state’s witness in this bill, and after he had testified that the game of dice was played up the Bosque river about three miles from the town of Hico, the district attorney read, from a statement in writing that the district attorney claimed was the state ment of the witness before the grand jury, to the witness that the witness had testified before the grand jury that the game was played at a place about a mile from Hico, and the examination of said witness then proceeded as follows: “Q. Is that statement true or false? A. I could not say whether it was about a mile, or how far it was. Q. You made this statement, ‘This was up the river about a mile from Hico’? A. Yes, sir. Q. Is that statement true or false? A. I guess it is true or I wouldn’t have signed it. Q. You made another statement, ‘It was a little further up the river than the slaughter pen.’ Is that true or false? A. I thought it the same way as the other. The Court (to the witness): Do you know whether it is true or false? A. Yes, sir; I guess it is.” The witness was then asked to put a mark on the map as best he could, where the game was played, and witness said he could not do it. Then the court said to the witness: “If you don’t indicate where in your best judgment it was, I am going to punish you. Mr. Sheriff, take this man and put him in jail; I have fooled with him as long as I am going to.” And the sheriff took the witness from the stand and took him to the jail. Afterwards, in about an hour, the sheriff brought the witness back, and the district attorney talked to him and placed him on the stand. He then testified that the place where the game was played was in Hamilton county, and located the place on the map satisfactorily to the district attorney. Defendant excepted because the action and statement of the court was the expression of the court’s opinion that the game of dice was played in Hamilton county, and that the witness knew it, and the witness was attempting corruptly to testify falsely, and was an intimation on the part of the court that the defendant was guilty, and the action of the court was calculated to intimidate the witness and to influence him to testify that he knew where the game was played, and that it was- played in Hamilton county, whether said witness knew said fact or not, the testimony showing on the trial of the case that the Hamilton and Erath county line was all the way from a mile and a half to three miles from the town of Hico, and.the witness testifying the game was played at night, and that they did not really know how far it was from Hico, and they placed the distance all of the way from a mile to three miles from Hico. This bill is signed with the same qualification as the preceding bill.

The exceptions reserved to the remarks of the court, under the circumstances, are well taken. This matter has been frequently before courts of last resort, and has become the subject of reversals in a number of cases. For collation of authorities, see Mr. Branch’s Crim. Law, § 363; also, Deary v. State, 62 Tex. Cr. R. 352, 137 S. W. 699; Drake v. State, 143 S. W. 1160; McMahan v. State, 61 Tex. Cr. R. 489, 135 S. W. 558. In the latter case there are a great number of authorities collated, and the matter is gone into at some length. This particular portion of the opinion will be found on page 495 of 61 Tex. Cr. R., page 558 of 135 S. W. If the court shall deem it necessary at any time to punish recalcitrant witnesses, he should retire the jury so that they may not be affected injuriously to the cause of the accused. The statute (article 787, Revised Code of Criminal Procedure) interdicts the court expressing his opinion about testimony and limits him to ruling upon its rejection or admission without expressing his views about it. These bills clearly indicate that the court believed the witness was evading the truth and telling a falsehood, or maybe committing perjury; he believed it so strongly that he sent one of the witnesses to jail, and the bill recites after he came from jail he then proceeded to testify satisfactorily to the district attorney. This matter was not cured by the action of the court withdrawing the matter from the jury. The court is not rendered powerless to protect itself in the due administration of justice, or in protecting the dignity of the court against its officers or the witnesses; but in the enforcement of his authority and the upholding of the dignity of his court he must not jeopardize the rights of the defendant, as in this case was done by his comments before the jury and his action in the matter generally. If the court deemed it necessary to act as he did act at the time, he should have retired the jury and inflicted such punishment or taken such course as he saw proper and necessary to bring about the ends of justice.

Another bill recites that Robert Sawyer, over appellant’s objection, was permitted to testify that he saw the defendant, Henry Rodgers, and Tom Woods playing dice on which money was bet in a box car in the town of I-Iico, Hamilton county, and at a place other than that alleged in the indictment. The same may be said of this as was said with reference to the game played at the compress in Hico on the first of August. Upon another trial this testimony will not be permitted to go to the jury.

We are of opinion the court should have restricted the consideration of the jury to the game played about the 1st of May as set out in the indictment, and should have guarded the jury against convicting defendant on either of the other occasions mentioned, in which some of the witnesses swear they played with him. This matter, however, is deemed not necessary to be discussed further, and we make the above statement, as this testimony will not be admitted upon another trial. In the trial of the case, however, under this record, appellant’s rights should have been guarded at this point against conviction under those matters.

Appellant asked another instruction which we believe ought to have been given, to wit, unless the jury found that the offense was committed in Hamilton county, appellant should be acquitted. There was doubt left from the testimony as to whether the game was played in Hamilton or Erath county. It being an issue in the case, the matter should have been submitted specifically by the charge. The court did in a general way instruct the jury that if they should believe that the game was played in Hamilton county, and the other matters concurring, they should convict, but where the issue is made as in this case a general charge of that sort is not sufficient, especially when the appellant requested it he specifically charged. If the jury should have found from the evidence that the game was not played in Hamilton county, it would have been their duty to have acquitted. The grand jury of Hamilton county would have no authority to examine into a case of gambling unless the gaming had occurred in Hamilton county.

There are some other matters suggested for review, but we think enough has been said without taking up each item specifically. The court will understand from what has been said that the matters that are connected with those discussed will take the same course as those already reviewed.

The judgment is reversed, and the cause is remanded.
      •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes


source: Caselaw Access Project

author: PRENDERGAST, P. J.

license: Public Domain

text:
    JOHNSON v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 22, 1913.
    Rehearing Denied Nov. 26, 1913.)
    1. Perjury (§ 25) — Indictment — Sufficiency.
    An indictment for perjury, alleging that the false statement was material to the issue on trial, is sufficient without alleging the facts showing the materiality.
    [Ed. Note. — Eor other cases, see Perjury, Cent. Dig. §§ 82-89; Dec. Dig. § 25.]
    2. Perjury (§ 26) — Indictment — Sufficiency.
    In an indictment for perjury, it is not necessary to traverse and negative all the facts to which accused is alleged to have testified on the trial, but it is only necessary to negative such of his testimony as was alleged to be false.
    [Ed. Note — Eor other cases, see Perjury, Cent. Dig. §§ 90-94; Dec. Dig. § 26.]
    3. Perjury (§ 32) — Evidence—Admissibility.
    In a prosecution for perjury alleged to have been committed in an action on a note made by accused to another, the note, being fully identified, is admissible in evidence, although not marked with a file mark.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 108-116; Dec. Dig. § 32.]
    4. Criminal Law (§ 1036) — Appeal—Objection Below — Necessity.
    In a prosecution for perjury, charged to have been committed in a civil suit in a justice’s court, the admission of the testimony of the justice, as to what the issues joined before him were, is not ground for reversal, where no objection was made below, even though the plea filed in the justice’s court would have been the best evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1631-1640, 2639-2641; Dec. Dig. § 1036.]
    5. Criminal Law (§ 1186) — Abpea]>-Harmless Error.
    In a prosecution for perjury, where there was no evidence that the testimony claimed as perjured was so given by mistake, inadvertence, or agitation, the failure of the court in his charge to define “willfully” and “deliberately” was not reversible error, in view of Code Or. Proc. 1911, art. 743, declaring that a judgment will not be reversed, where the error was not calculated to injure the rights of defendant; it appearing that accused was given the lowest penalty.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 3215-3219, 3221, 3230; Dec. Dig. § 1186.]
    6. Perjury (§ 12) — Prosecution—Defenses-
    That a false statement was made through inadvertence or mistake or under agitation is a matter of defense, in view of Pen. Code 1911, art. 305, declaring that such statements are not perjury.
    [Ed. Note. — For other cases, see Perjury, Cent Dig. §§ 55-61; Dec. Dig. § 12.] '
    7. Perjury (§ 1) — Prosecution—What Constitutes.
    “Perjury” is a false statement deliberately and willfully made.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. § 1; Dec. Dig. § 1

    For other definitions, see Words and Phrases, vol. 6, pp. 5305-5310; vol. 8, p. 7751.]
    8. Criminal Law (§ 1091) — Appeal—Presentation of Ground of Review in Court Be-lo w — Objection.
    An objection to an instruction contained in a bill of exceptions, which merely stated that it did not charge the law applicable to the indictment and the facts introduced, is too general to be considered on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2S03, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.]
    9. Criminal Law (§ 875) — 'Trial—'Verdict-Sufficiency.
    The misspelling of the words “guilty” by omission of the “t,” and “foreman” by omitting th§ “m,” in the verdict of the jury, does not vitiate it.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2089, 2090; Dec. Dig. § 875.]
    Appeal from District Court, Austin County; Frank! S'. Roberts, Judge.
    Eddie Johnson was convicted of perjury, and he appeals.
    Affirmed.
    Johnson, Mhtthaei & Thompson, of Bell-ville, C. C. Glenn, of Sealy, and Buchanan & Stone, of Brenham, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

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

   PRENDERGAST, P. J.

Appellant was convicted of perjury and his punishment fixed at the lowest prescribed by law.

There was no motion to quash the indictment made in the lower court, but there was a motion, made some nine days after the trial, in arrest of judgment claiming that the indictment was insufficient. The indictment follows substantially, if not literally, the form therefor in White’s Ann. P. C. § 334, and Willson’s, No. 137, in his 4th Ed. of forms therefor.

“If the indictment alleges that the false statement was material to the issue on trial, it is sufficient without alleging the facts which show the materiality.” Section 332, subd. 6, White’s Ann. P. C., and eases there cited; Scott v. State, 35 Tex. Cr. R. 11, 29 S. W. 274.

It was not necessary under the indictment to traverse and negative each and all of what appellant is alleged to have testified on the trial. It was only necessary to negative such of his testimony as was alleged to be false. Robertson v. State, 150 S. W. 896, and Young v. State, 157 S. W. 151, and cases cited in both of these.

The court did not err in admitting the note in evidence. The note was produced and unquestionably identified as the note sued upon in the justice court in the trial of which case the perjury in charged to have been committed, and whether it had any file mark on it at all or not, or whether, instead of placing the file mark on the note, it was placed on a piece of paper, pinned thereto, would be wholly immaterial. There is no question as to the identity of the note.

The perjury alleged to have been committed by appellant in this case was in the trial of a civil case in the justice court on a promissory note wherein one Preibiseh was plaintiff and appellant and one Haak were defendants. The indictment alleges that it was a material question in said case whether appellant had signed his name, and had made his mark and authorized his name to be signed to said note; and that the issue thereon was duly joined between the parties; that, among other things, appellant swore on the trial of that case that he did not sign his name and did not make his mark, and did not authorize said 1-Iaak or any other person to sign his name or make his mark to said note; that in fact appellant did make his mark and did authorize said Haak to sign his name to said note; and that his testimony was false, and deliberately and willfully made, etc. In various ways appellant contends that this conviction cannot stand because the record does not affirmatively show that appellant had filed his plea of non est factum in the justice court denying his signature thereto, and he especially cites and relies upon Garrett v. State, 37 Tex. Cr. R. 198, 38 S. W. 1017, 39 S. W. 108, and other cases, to sustain him. As shown above, the indictment does allege that the false testimony was material. Conceding that it must be proved, it does not necessarily follow that the only way to prove it is by the introduction of the plea of non est factum which was filed in the justice court. That would be a proper way to prove it; but if it was proven otherwise, without objection, such proof would be as effective. The record in this case does not show that any such written plea was introduced. But it does affirmatively appear from the statement of facts that the justice of the peace before whom the case was tried specifically testified that the issue was joined in that justice court suit and trial, as to who executed said note. This proof was made without any objection by the ’appellant, and he raises the question for the first time by his second amended motion for a new trial filed some nine days after the trial had been concluded. The Garrett Case, supra, does not hold that such proof of the issue joined cannot be made otherwise than by the intro.duction in evidence of the written plea of non est factum. Doubtless, if objection had been made to the oral testimony of the justice of the peace, stated above, the court would have sustained the objection, because the written plea itself may have been the best evidence thereof; but it is too late for appellant to raise the question the first time, after the trial of the case is concluded. We think the Garrett Case, supra, is therefore not in point.

Appellant also complains that the court failed to define the words “deliberately” and “willfully” in his charge. The court, in approving the bill on this point, qualifies it by stating that the failure of the court to define these words was not excepted to at the time, and no requested charge defining them was asked by appellant, and “there was no issue raised by the evidence of mistake, inadvertence, or agitation when said alleged false statement was made in the justice court; the defendant’s only defense presented being that he did not sign or authorize any one to sign for him said note.” Such being the case, and the jury having assessed the lowest penalty against appellant, this does not present reversible error. Article 743, C. C. P.

In Brown v. State, 9 Tex. App. 171, this court held the inadvertence, mistake, or agitation contemplated by P. C. art. 305, is defensive matter. While the word “deliberately” is not separately defined, yet as held by this court in Clay v. State, 52 Tex. Cr. R. 556, 107 S. W. 1129, the charge of the court, in this, as in the Clay Case, fully and sufficiently covered and embraced a definition of said word.

Appellant cites and relies on Windon v. State, 56 Tex. Cr. R. 198, 119 S. W. 309, and some like cases, to the effect that the failure to define “willfully” in a perjury case is reversible error. The Windon Case and others cited by appellant are based on the decision of Steber v. State, 23 Tex. App. 176, 4 S. W. 880. In the Steber Case it is expressly stated, “under the peculiar facts of this case,” we are of the opinion the court should have defined “willfully.” Then the court fully states such peculiar facts. The facts of that case and the defense of appellant are quite different from the facts and defense in this ease. The facts and defense are not stated in the Windon Case, but it is founded on the Steber Case, and, the same character of case, it must have come within the peculiar facts thereof. This case clearly comes within the eases of Hill v. State, 22 Tex. App. 579, 3 S. W. 764; Garza v. State, 47 S. W. 983; Woodson v. State, 24 Tex. Cr. R. 162, 6 S. W. 184; and other like cases. The opinion in the Garza Case was written by Judge Heiiderson, and in it he quotes the opinion of Judge Hurt in the Hill Case. These cases are specially and peculiarly applicable to this case. We quote and adopt the opinion in the Garza Case, as follows: “It is also urged that the trial court committed an error, for a failure to define the word ‘willfully.’ An exception to this failure of the court to define this word was not reserved at the time the charge was given, but is brought forward in the motion for a new trial. ‘Willfully,’ in this connection, is tantamount to ‘knowingly,’ and is distinguished from a statement made through inadvertence or mistake or under agitation. The charges on perjury, so far as we are advised, do not contain a definition of the term ‘willfully,’ further than is contained in the definition of the offense; that is, the jury are told that the statement must be willfully and deliberately made, and must be under oath in a judicial proceeding, and must be material to the issue joined, and that the falsity of such statement must be shown, and that appellant knew it was false when he made it, and that such statement must be shown to have been made not through inadvertence or under mistake or during agitation. These allegations contain the distinctive elements of the offense, and, when shown, carry with them the idea that the statement was made willfully; that is, knowingly and with evil intent. The view here stated is borne out in Hill v. State, 22 Tex. App. 579, 3 S. W. 764. In that case the court say: ‘The charge of the court is complained of because it does not define the word “willful.” No objection was taken to the charge when given, nor were any special instructions requested; the correctness of the charge being called in question for the first time in the motion for a new trial. We are cited to several cases holding that it is necessary to define “willful.” These decisions are correct, when considered with reference to the offenses discussed, and the peculiar facts of the cases cited. When, however, considered with reference to this offense, and when the charge is taken as a whole, we do not think the omission contributed in the least to injure the appellant. “Perjury” is a false statement deliberately and willfully made. A false statement made through inadvertence or under agitation or by mistake is not perjury. The court in its charge gave to the jury the above definition and restrictions in a very clear manner. We cannot see how a party can deliberately, without agitation, coolly,. without mistake or inadvertence, make a false statement, without such statement be “willfully” made. The omission, if error, not being objected to at the time, we must look to the entire record to ascertain if it was prejudicial to defendant; and, thus viewing the record, we perceive no injury.’ ”

In a separate paragraph the court told the jury: “If you believe that the defendant did not sign said note described in the indictment and did not make his mark for signature to same and did not authorize W. A. I-Iaak, nor any other person, to sign his name or his mark to said note, or if you have a reasonable doubt of this fact, you will acquit the defendant and so state in your verdict.” No complaint of such charge is anywhere made in appellant’s motion for new trial. It is presented solely by bill of exceptions which was presented to the court February 24,1913, and filed on that day, which was some 29 days after the adjournment of the term of court. The only objection to this charge is: “That the same does not state the law applicable to the charge in the indictment and the facts introduced on the trial of said cause.” Wherein or how it does not state the law is not given. This objection is too general under the well-established law, frequently decided by this court, to authorize this court to consider it, and presents no reversible error under the circumstances.

There are some misspelled words in the verdict of the jury, which was: “We the jury find the defendant guily and assess his punishment at two years in the penitentiary. Emil Krueger, Forean of the Jury.” The insufficiency of this verdict is complained of for the first time by bill of exception presented to the court long after adjournment for the term. The misspelled words in no way vitiated the verdict.

The judgment is affirmed.


author: PRENDÉRGAST, P. J.

text:
    WILSON v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 22, 1913.
    Rehearing Denied Nov. 26, 1913.)
    1. Larceny (§ 28) — Indictment — Sufficiency.
    An indictment, charging that defendant •stole from a person named corporeal, personal property then and there belonging to such person, to wit, one purse containing money and checks, sufficiently charged the offense of larceny from the person.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 58, 59, 62, 99, 101; Dec. Dig. § '28.]
    2. Criminal Law (§ 1091) — Appeal—Stteei-ciency oe Bill oe Exceptions.-
    A bill of exceptions to the exclusion of evidence, not showing what the alleged excluded testimony was, is so imperfect as not to require consideration on appeal.
    [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. § 1091.]
    3. Witnesses (§ 337) — Evidence—Character oe Deeendant.
    In a prosecution for larceny from the person, the fact that defendant was a prostitute can always be drawn out upon her cross-examination.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1113,1129-1132,1140-1142, 1146-1148; Dec. Dig. § 337.]
    4. Criminal Law (§ 1170½) — Appeal-Harmless Error.
    Where defendant; in a prosecution for larceny from the person, denied that she was a prostitute, error, if any, in permitting cross-examination as to her character, was not reversible error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3129-3135; Dec. Dig. § 1170½.]
    Appeal from District Court, Austin County; Frank S. Roberts, Judge.
    Kate Wilson was convicted of theft from the person, and she appeals.
    Affirmed.
    W. I. Hill, of Sealy, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDÉRGAST, P. J.

"The appellant was indicted for the offense of theft from the person, convicted, and her punishment fixed at the lowest prescribed by law.

The indictment charges that she thus stole from Henry Thelen “corporeal, personal property then and there belonging to the said Henry Thelen, to wit, one purse containing- money and checks.” The appellant, by motion in arrest of judgment, claimed that said description of the stolen property was insufficient, and that there was no allegation of the value of the stolen property. These questions have so many times been fully discussed and decided adversely to appellant that we deem it unnecessary to further discuss them or cite all of the authorities. But see Sims v. State, 142 S. W. 572, and cases therein cited, and Ferrell v. State, 152 S. W. 901.

By such an imperfect bill of exceptions as does not require this court to consider it, appellant, it seems, undertook to prove by the prosecuting witness what he told the deputy sheriff of the details of having sexual intercourse with the appellant, and to the officer making him hush because his family was there when he was telling these details. The bill shows no error. Besides the bill in no way shows what the testimony was that he claims was excluded. The court in approving the bill states that the witness was permitted to testify as to his drunken condition.

By a like insufficient bill appellant attempts to complain that the state, over her objection, was permitted to ask the appellant on her cross-examination, in effect, if she was not a prostitute. She answered that she was not. The fact, if so, can always be drawn out by cross-examination of a witness that she is a prostitute. McCray v. State, 38 Tex. Cr. R. 612, 44 S. W. 170; McGrath v. State, 35 Tex. Cr. R. 422, 34 S. W. 127, 941; Hall v. State, 43 Tex. Cr. R. 489, 66 S. W. 783; Bigliben v. State, 151 S. W. 1045; Bird v. State, 148 S. W. 739; 3 Enc. of Ev. 759; [Wilbur v. Flood, 16 Mich. 40, 93 Am. Dec. 203.

Besides the witness having testified denying that she was a prostitute, no reversible error is shown. Sweeney v. State, 146 S. W. 885.

Appellant asked a peremptory instruction to find her not guilty because the evidence was insufficient to sustain a verdict, and also urges that the evidence is insufficient to do so. It would serve no useful purpose to detail the evidence. ' We have carefully considered it, and in our opinion it is sufficient to sustain the verdict and to show appellant’s guilt as alleged in the indictment.

The, court gave a full and correct charge, submitting the issues properly to the jury. There being no reversible error, the judgment will be affirmed;


author: HARPER, J. DAVIDSON, J.

text:
    MARTIN v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 29, 1913.
    Rehearing Denied Nov. 26, 1913.)
    1. Homicide (§. 257) — Assault with Intent TO KlLI> — SUFFICIENCY 0E EVIDENCE.
    Evidence, in a prosecution for assault with intent to kill, held sufficient to sustain a conviction.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 543-552; Dec. Dig. § 257.]
    2. Homicide (§ 116) — Assault with Intent to Kill — “Sele-Deeense.”
    Self-defense is where one acts under the belief that he is in actual or apparent danger.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 158-163; Dec. Dig. § 116.

    For other definitions, see Words and Phrases, vol. 7, pp. 6402-6408; vol. 8, p. 7797.]
    3. Homicide (§' 300) — Assault with Intent to Kill — Instructions—Self-Defense.
    ' In a prosecution for assault with intent to kill, where defendant’s evidence tended to show that he intentionally did no act to defend against the shot fired by the prosecuting witness, but that his gun was accidentally discharged, the Issue of self-defense was not raised, so that there was no error in failing to charge thereon.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    4. Homicide (§ 300) — Instructions—Conformity to Issues.
    Where the evidence for the state or that in behalf of defendant, taken as a whole, raises the issue of self-defense, or any defensive issue, it should be submitted to the jury in the charge.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    5. Homicide (§ 86) — Assault with Intent to Kill — Accident.
    Where defendant’s firing of the gun by which the prosecuting witness was struck was accidental, defendant could not be guilty of an assault with intent to kill.
    [Ed. Note. — For other cases,, see Homicide, Cent. Dig. § 112; Dec. Dig. § ’86.]
    6. Homicide (§ 292) — Instructions—Provocation.
    In a prosecution for assault with intent to kill by shooting, where defendant testified he went into the restaurant to make friends with the person shot, an instruction that if such statement was true, or if there was a reasonable doubt of its truth, defendant should be acquitted regardless of what he did or did not do after being in the restaurant was proper.
    [Ed-. Note. — For other cases, see Homicide, Cent. Dig. §§ 597, 598, 600, 601; Dec. Dig. § 292.

      ]

    7.Homicide (§ 158) — Assault with Intent to Kill — Admissibility of Evidence.
    Where a shooting grew out of an altercation between the prosecuting witness and the defendant, evidence as to such altercation and defendant’s use of insulting language and his threat that he would see the witness later was admissible in a prosecution for assault with intent to kill.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 293-296; Dec. Dig. § 158.]
    Davidson, J., dissenting.
    Appeal from District Court, Bowie County; H. F. O’Neal, Judge.
    Fount Martin was convicted of an assault with intent to kill, and he appeals.
    Affirmed.
    R. H. Jones, of De Kalb, and Mahaffey, Thomas & Hughes, of Texarkana, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted of making an assault on O. M. Chasteen with intent to kill him, and his punishment assessed at two years’ confinement in the state penitentiary.

There is a sharp conflict in the testimony; the defendant’s theory being that Chasteen is guilty of assault to murder him, and that one Butler was acting with Chasteen. It appears that the shooting took place in Chasteen’s restaurant in the town of De Kalb; that on the east side of the room a counter extended back some 35 or 40 feet; at the north end thereof the counter elbowed to the west and extended west about two-thirds of the way across the room; just back of this counter a curtain was hung and is thus described by a witness: “It was made out of cheap five cents a yard cloth and was very thin. It was not sewed together. A rope run from one side to the other, and the end of the cloth was thrown over the rope and pinned. It was in strips about 18 inches wide and hung from the rope to the floor; the strips not being sewed together but hanging loose.” Witness said it at times stood open. This description is placed in the opinion as appellant thinks this cloth partition material in the case. O. M. Chasteen, the chief prosecuting witness, testified: Thát, near dark the night of the shooting, appellant Fount Martin, with two boys took their seats at the counter and ate a meal. That, while "the three were eating, appellant’s brother, Newt Martin, was in front of the restaurant and called one of the boys. That when this happened a conversation ensued in’ which appellant talked to him in a very offensive and insulting way (the language being such we do not care to embrace it in the opinion) and said that Newt Martin was mad at appellant and was going to whip the witness, (Chasteen); that if he' did not do it he (appellant) could do it, when witness replied then was as good a time as any. Witness says when appellant went to leave the restaurant with, the boys he remarked to witness, “I will see you again.” That he was called out of the restaurant and was absent several minutes, and while out his clerk came to him and told him that appellant had returned to the restaurant with a shotgun and asked for him (Chasteen). That this frightened him and he went or sent for a shotgun and pistol and sent for the constable. That when the constable came he told him the circumstances and returned to the restaurant, placing the pistol on the shelf behind the counter and carried the gun with him to a point near a gas stove and set it down, and then began to fry some oysters. That he was standing just behind the curtain near the stove when a gun was fired, three shots striking him in the shoulders. That he looked and saw appellant standing just inside the front door and got Ms gun and shot at appellant, firing through the hole made to pass dishes through. That appellant fired at him again, and he returned the fire, when appellant walked out of the restaurant.

Appellant testified and stated: He and the boys did go in the restaurant and eat. That a conversation did come up about his brother Newt, but says he did not use the language attributed to him by Chasteen, but his version is that he stated the reason his brother Newt did not come in that he (Newt) was angry about appellant trying to get some heirs to sue him as administrator of an estate. Some other conversation ensued, and that, as he got up to leave, Chasteen, the state’s witness, got a pistol and said, “You get out of here, you G-d d-n s-n of a b-h and stay out” That tMs made him angry, but he left. That he went to the store of Ralph Burns and told Burns about what Chasteen had called him and admitted asking Burns for a gun but demes he told Burns he was going to kill Chasteen. He also went to the store of Clint Smith and tried to get a gun but failed at both places. By this time he says he had got cool and went back to Chasteen’s restaurant to make friends with him and had no gun on this trip. However, Powell and Vineyard say he did have a gun on this trip to the restaurant. Appellant says when he did not find Chasteen in the restaurant he left and went to the hardware store and purchased a gun and some shells from Ollie Burns, saying he intended the gun for his nephew. The gun was in fact charged to Newt Martin. After leaving the hardware store he was approached by some one whom he took to be Powell, who stated that Chasteen wanted to see him (appellant), and he returned to the restaurant. (Powell denies approacMng appellant.) When he got to the restaurant he had the gun in Ms right hand pointing down. That the constable was present and approached him, attracted his attention, and as he did so the constable called to Chasteen, “shoot Mm,” when he was shot by Chasteen. That, while his (appellant’s) gun was then fired, yet it went off accidentally, with no intention on Ms part to shoot. That these were all the shots fired. In Ms statement that only two shots were fired he is supported by Swinney and Welch, who say that a train had just come in and they were at the depot some 76 yards distant and heard only two shots. On the other hand, Chasteen is supported, in Ms statement that four shots were fired, by Powell, who states he was in the restaurant and says he jtMnks five shots were fired. It is further shown by all the testimony that Chasteen fired at least one shot, and appellant’s gun had two empty shells in it: he stating he supposed both barrels went off at once when the gun was unintentionally discharged.

Appellant introduced three witnesses who testified they had examined the cloth curtain and they found no shot holes in it, Swin-ney, Burnett, and Morrell, placing them in position to make an investigation in ¿regard to this matter. Some of them say they found dents in the stovepipe and some holes in the tin part, yet they did not think they had been made by shot; it being appellant’s contention that Chasteen had made these holes and indentations with a nail. Powell said he had never examined the curtain, but the holes in the tin work on the stove were shot holes and were made, he says, when appellant shot at Chasteen. He was in the restaurant at the time of the shooting and corroborates Chasteen in his testimony almost in its entirety. Standberry and others corroborate Chasteen when he says that, when appellant left just after eating his supper, he remarked, “I will see you later,” and say that Chasteen did not draw a pistol on appellant at this time as testified to by appellant; Powell saying further that he stayed in the restaurant and there was no pistol there at that time. Powell also testifies that, when appellant came in the second time with the gun, he went and told Chasteen about it, and Chasteen did send for the constable. It was at tMs time he got the guns and brought them to the restaurant.

The state further showed by Ralph Burns that, when appellant first left the restaurant, he came to Ms store, asked for a gun, and told him he was going to kill Chasteen, saying Chasteen had called him a son of a b-h and he was not going to take it; that he returned in about ten minutes, and then had a shotgun, and repeated that he was going to kill Chasteen, and, while he (Burns) did not hear the shooting, he learned of it within 15 minutes of tMs time. Smith testified that appellant came to him to borrow a gun, but did not get it, and did not say what he wanted with it, but did tell Mm that Chasteen had called him a son of a b-h and threw a gun on him, and it was hard to take. Ollie Burns testified that shortly after dark appellant came into the hardware store and purchased a gun and some shells of No. 8 shot.

We have stated the testimony extensively, as one of the main contentions of appellant is that the testimony will not support the conviction, contending that, at the distance the gun was fired, holes would have been prominent in the curtain that all could have seen. It may be said that testimony predominates in favor of the contention that there were no holes in the curtain, yet Chasteen swears that there were small shot holes in it, and he and Powell state conditions that it would have been probable for the gun to have been fired and create no holes in the curtain; they saying it was hanging down in strips, unsewed, and frequently one flap would stand apart. We are of the opinion that the testimony will sustain the verdict of the jury; and this was evidently the opinion of the trial judge who overruled the motion; and we would not feel justified in reversing the judgment on this ground, for, if the state’s testimony is to be believed, he left the restaurant saying to Chasteen he would see him later, goes to Smith’s and Burns’ and tries to borrow a gun, telling Burns he was going to kill Chasteen. Failing to borrow a gun, he goes to Ollie Burns, buys a gun, and returns to Ralph Burns with the gun, repeating that he is going to kill Chasteen; goes into the restaurant and asks for Chasteen; failing to find him, he leaves, but returns again, when the shooting occurs, Chasteen saying appellant shot at him when he did not even know he was in the restaurant. Powell corroborates Chasteen in saying that appellant fired at Chasteen twice, and appellant’s gun showed two empty shells.

Appellant’s next main contention is that the court erred in failing to charge on self-defense. The state’s case would make a plain case of assault to murder; there being no suggestion in the testimony that appellant may have acted in defense of actual or apparent danger when the state’s witnesses say he fired the shot. Appellant introduced no witness, other than himself, who witnessed the shooting, and if self-defense is raised it must be by his testimony. If it raises or suggests it, then it would have been proper for that issue to have been submitted. He testified, as hereinbefore stated, and as bearing on this direct issue at the time he returned to the restaurant: That he had gotten in a good humor. That he received a message from Chasteen and went in obedience to that request. He saw Constable Butler standing at the end of the counter, and Butler commenced to knock on the counter. He started to sit down on a stool when Butler said, “Hello, Fount,” and walked by him, and opened the door, and called appellant That as he turned Butler said, “Shoot him, Orren” (Chasteen being named Orren), when Chasteen shot him, 30 or 40 shot hitting the gun. That he grabbed the gun with his left | hand and it fired. That he does not know whether one or both barrels went off. That he did not shoot at Orren Chasteen and did not intentionally shoot the gun. That he went in the restaurant with the intention of making friends. This is putting the matter in the strongest light for defendant. He says his gun went off accidentally; that he did not shoot at Chasteen; and, if this is true, he would be entitled to an acquittal, but not on the ground of self-defense, but on accidental and unintentional shooting. Self-defense is where a man does some act on the ground that he is in actual or apparent danger. Appellant says he intentionally did no act to defend against the shot he says Chasteen fired at him, but his gun accidentally went off, and we are of the opinion the court did not err in failing to charge on self-defense nor in refusing to give the special charges presenting that issue.

We agree that the law is that if the evidence for the state, or the evidence offered in behalf of the defendant, or the evidence taken as a whole raises the issue of self-defense, or any other defensive issue, it should be submitted to the jury in the charge, but in this case the state’s evidence shows a deadly assault when Chasteen was doing nothing.

The defendant’s" testimony shows an accidental discharge of the gun, and there is no testimony that Chasteen fired first, and then appellant intentionally shot at Chasteen, believing his life was in danger. He says he did not do this. The court charged the jury: “The defendant claims that the firing of the gun that he had was accidental. Now if you believe from the testimony, or have a reasonable doubt, that the defendant’s gun was accidentally fired, you will find the defendant ‘not guilty.’ ” This presented the issue as made by his testimony, and there is no complaint of this paragraph of the charge; the complaint being that it was error to fail to charge on self-defense.

The court also charged the jury: “If you believe from the testimony, or have a reasonable doubt, that the defendant, Fount Martin, went into the restaurant of the alleged injured party upon a peaceful mission and for the purpose of making friends, then you will find him not guilty.” The complaint of this paragraph is that it limited appellant’s right of self-defense. If the testimony raised the issue of self-defense, there would perhaps be merit in this contention; but, as we hold the court did not err in holding that the evidence did not raise the issue of self-defense, this paragraph would, if anything, be more favorable to defendant than was called for. The defendant had testified he went into the restaurant to make friends with Chasteen, and in this paragraph the court tells the jury if they find this true, or have a reasonable doubt of its being true, to acquit defendant, regardless of what he did or did not do, after getting in the restaurant. Under this charge, to have convicted the defendant, the jury must have found that appellant went and got the gun and returned to the restaurant with the intent to carry into execution the threat he made to Burns to kill Ohasteen. However, this character of charge was approved in Puryear v. State, 56 Tex. Cr. R. 242, 118 S. W. 1042.

Appellant has three bills of exception, all relating to that portion of the testimony of Orren Ohasteen, P. M. Powell, and S. M. Standberry, in which they testify about the wordy altercation occurring between appellant and Ohasteen, in which Ohasteen testified appellant used insulting language to him and left with the threat that he would see him later, and about which appellant testifies that at the close of it Ohasteen secured a pistol, cursed him, and told him to get out of his restaurant. It is apparent from the entire record, regardless of whether the state’s theory or the defendant’s theory is the correct one, that it is this altercation out of which the subsequent hostilities and shooting grew, and there was no error in admitting the testimony.

We have carefully reviewed each and every ground in the motion for new trial, and while not writing on each of them, but rather treating some of them collectively, none of them present any error.

The judgment is affirmed.

DAVIDSON, J.

(dissenting). Appellant was convicted of assault with intent to murder; his punishment being assessed at two. years’ confinement in the penitentiary.

All the issues are directly in conflict, viewed from the different standpoints of the evidence. Briefly stated, omitting details, the evidence shows that the defendant and two little nephews entered the restaurant belonging to the alleged assaulted party, Ohasteen, and were taking lunch. A wordy altercation came up between appellant and Ohasteen in which Ohasteen throws the blame upon appellant and appellant throws the blame upon Chasteen. The evidence on this phase of it is sharply in conflict. It is deemed unnecessary to go into a detailed statement of it. The state’s evidence is to the effect that appellant left the restaurant in an angry mood, informing Ohasteen that he would return. Ohasteen understood this to mean that there would be trouble on his return and, so thinking, armed himself with a six-shooter and a shotgun. Appellant did return and went away again. The state’s testimony is to the effect that he was armed at the time he returned with a gun, but this is flatly denied by appellant. Appellant returned the second time; this time he was armed, and about this there seems to be no controversy. When he returned he found Butler, the constable, had also found his way to the restaurant, it seems, upon the call of Ohasteen, and was in back part of the restaurant with Ohasteen. The place where these parties were located was screened off from the other part of the restaurant by means of curtains made of a thin domestic or “cheese cloth.” These curtains “screened” off the kitchen. Ohasteen was in the kitchen attending to culinary matters when appellant entered the restaurant. Appellant says he purchased the gun for some boy relative whom he had promised to give a gun and entered the restaurant with no purpose of raising any trouble but to try to make friends with Ohasteen, but when he entered Butler rapped on the counter and came away from where Ohasteen was as if to go out of the door of the restaurant. After reaching the south end of the counter, Ohasteen being at the north end and behind the curtains, Butler called appellant’s name, “Fount,” and then holloed back to Ohasteen, “Orren, shoot him.” That immediately Ohasteen did shoot him, and he was shot in various places, and his gun went off at the time, which he says was accidental. A load of shot was found in the counter below the top of it. Appellant denies shooting at Ohasteen and says he did not know how it occurred that his gun fired; both barrels of his gun were fired. Ohasteen says that appellant shot at him first through the curtain, striking him in the shoulder with two or three shot. Small shot were used by both parties. Ohasteen admits firing twice. The witnesses say there were four or five shots fired during the trouble. The evidence goes strongly to show there were no shot that passed through the curtain; but one witness says he thought he discovered where scattering shot had gone through. The testimony, we think, fairly shows that the shot did not go through the curtain. Be that as it may, there were four, possibly five, shots fired.

Under the above statement, if appellant returned to the restaurant for the purpose of shooting Ohasteen and did shoot at him before Ohasteen shot, this presents the issue of assault with intent to murder in view of what had occurred previously. If he returned and did nothing to bring on the difficulty, and Ohasteen shot and appellant’s gun went off accidentally, he would not be guilty of any assault. If Ohasteen fired first, as testified by appellant, and appellant’s gun did not go off accidentally, but he fired it at Ohasteen, there would be clearly the issue of self-defense under the facts. Appellant had the right to go to the restaurant and talk with Ohasteen; he had the right to go to the restaurant, unless he did so for the purpose of raising the trouble and did raise it upon reaching there. Under the testimony, so far as appellant’s side of it is concerned, two issues were raised: First. That his gun went off accidentally when Ohasteen shot him. Under his evidence Ohasteen fired the first shot. Second. If appellant’s gun did not go off accidentally, as claimed by him, but was fired intentionally after being shot at by Ohasteen, then the issue of self-defense was in the case cogently. If, as Ohasteen testifies, when appellant went in the restaurant he' fired first, neither accidental shooting nor self-defense would be in the case, but these were issues raised by the facts. If we take Chastepn’s testimony, appellant fired the first shot, then he returned the fire, and appellant fired again, and he (Chasteen) fired again, making four shots. Taking appellant’s testimony, Chasteen fired first, and then his gun went off accidentally, and the shooting continued. If Chasteen fired first, and the jury should not believe appellant’s statement that the gun was fired accidentally, they still could believe that his was the second shot and fired after Chasteen had shot at him. There being no issue of provoking the difficulty in the case by any act or word on the part of appellant, he would have the perfect right of self-defense, and it would make no difference that he testified his gun went off accidentally if the jury believed under this state of case that he fired intentionally. The issue of self-defense under all the authorities would be in the case. This question has been so often decided that the writer deems it unnecessary to cite eases. The proposition ought not to be debatable in Texas that where a party goes to see his adversary with a view not of killing him or bringing on a difficulty, and the adversary does bring on the difficulty, the right of self-defense is not impaired. He still would be justified in resisting an attack on the part of his enemy. This question has been frequently adjudicated, and especially since Cartwright v. State, 14 Tex. App. 486, and Shannon v. State, 35 Tex. Cr. R. 2, 28 S. W. 687, 60 Am. St. Rep. 17. This matter underwent a thorough investigation in an exhaustive opinion by Judge Ramsey in the Don Gray Case, 55 Tex. Cr. R. 91, 114 S. W. 635, 22 L. R. A. (N. S.) 513.

The trial judge charged the jury upon the theory that appellant’s gun went off accidentally. We conclude, therefore, that he did not believe there was any evidence of self-defense, and necessarily he tied the defendant’s case to what the defendant personally testified on this particular issue. The trial court, charging upon this issue, could only have done so, and evidently did only do so, because of appellant’s testimony and bound him alone to that theory. This phase of the court’s charge, however, recognized distinctly and clearly that, if appellant’s gun went off accidentally, it was only after the shot was fired by Chasteen. If Chasteen fired the first shot for the purpose of killing or shooting the defendant, then, if appellant’s gun went off accidentally, it was after Chasteen fired. If it did not go off accidentally, then it was fired intentionally by defendant This is the strongest light in which this case could be put against the defendant on that theory. In either event, appellant’s gun was fired after Chasteen’s gun was fired. This was an issue in the case which the jury might have believed and could have believed, but the court did not see proper to charge this 1 and limited that theory of the case alone to the accidental discharge. If the gun was not accidentally discharged under circumstances testified by appellant but was intentionally discharged after Chasteen fired the shot, then appellant’s right of self-defense would be unimpaired and perfect. He then had the right to shoot. This phase of the law was not given, and it was presented in almost every conceivable shape by appellant in the court below, not only on objections to the charge, but by requested instructions. It is the duty of the court to submit all the issues of a case made by the facts, whether he believes the testimony or not. The jury are the judges of the facts and the weight of the testimony and credibility of the witnesses. The court in this particular phase of the charge confined the case to appellant’s statement alone of accidental discharge after he had been shot by Chasteen. The accused is entitled to a charge on all phases of the testimony from the different sources it finds its way before the jury. If the state introduces facts that raise an issue favorable to defendant, a charge should be accordingly given to the jury. If the issues are favorable by defendant’s personal testimony, those issues should be submitted to the jury appropriately, and also upon the whole evidence, from whatever source it comes, the issues are just as much in the case as if testified to by the defendant himself. The defendant’s case is not bound down alone to his personal evidence. This matter has been discussed frequently and the law held to be the other way. Scott v. State, 153 S. W. 871; Keith v. State, 50 Tex. Cr. R. 63, 94 S. W. 1044; Venters v. State, 47 Tex. Cr. R. 280, 83 S. W. 835; Sowell v. State, 32 Tex. Cr. R. 482, 24 S. W. 504. These are a sufficient number of cases on this question.

The court also charged the jury as follows : “If you believe from the testimony or have a reasonable doubt that the defendant, Fount Martin, went into the restaurant of the alleged injured party upon a peaceable mission and for the purpose of making friends with the alleged injured party, then you will find the defendant not guilty.” Various objections were urged to this phase of the charge. It is unnecessary to take up the different grounds of objection. It is true that, if appellant went into the restaurant on a peaceable mission and for the purpose of making friends with Chasteen, it would not justify Chasteen in shooting him; but suppose he went in there not on peaceable mission nor for the purpose of making friends with him as contended by the state, and did no act and said nothing that would justify Chasteen in shooting at him, then what would 'be his attitude in the case? Certainly he would not be guilty under those circumstances if he went into the place and did nothing except to receive Ohasteen’s shots. Both barrels of appellant’s gun are shown to have been shot. Suppose he went in upon a peaceable mission and after getting in Chasteen shot at him; he certainly would have the right to return the fire if he had done nothing to provoke a difficulty. This charge would indicate to the jury that before appellant could be found not guilty they must find that he went into the place on a peaceable mission for the purpose of making friends with the other man. Under this charge, if that was not true, the converse of it was that if he went in there not on a peaceable mission, and not for the purpose of making friends, he should be convicted. Under all the authorities the appellant is not required to go in a peaceable frame of mind; he may be outraged in his feeling when he hunts his adversary; but until he does some act or says something that provokes the other man to shoot at him, or he does some act himself in shooting or bringing up the difficulty, he still would not be guilty. This matter has been the subject of various decisions, and this question was very thoroughly discussed by Judge Brooks in King v. State, 51 Tex. Cr. R. 208, 101 S. W. 237, 123 Am. St. Rep. 881. See, also, Airhart v. State, 40 Tex. Cr. R. 472, 51 S. W. 214, 76 Am. St. Rep. 736. These two cases have been followed in subsequent decisions. To meet this appellant asked the following charge: “If the defendant entered the restaurant of O. M. Chasteen, and if he did nothing to indicate that it was his intention to kill or inflict upon said Chasteen serious bodily injury, and if said Chasteen shot, or shot at, the defendant, then you will acquit the defendant regardless of any threats which you may find from the evidence that defendant may have made against said Chasteen, and regardless of whether defendant’s purpose in entering said restaurant was peaceable or otherwise.” While this charge is not artistically drawn, it does call the court’s attention to the correct idea, and this phase of the law should have been given in charge to the jury. This is the settled rule in Texas.

Another question is presented. Appellant claimed by his testimony that when he entered the restaurant the last time, and before the shooting, he did nothing to authorize Chasteen to shoot at him, and that Chasteen fired first. He also testifies at this point and in this connection that Butler came from where Chasteen was along the counter, passing him (appellant) and calling his (appellant’s) name, and holloed at Chasteen to shoot him; Butler placing himself near the south end of the counter and near the entrance to the restaurant. This would place Butler and Chasteen almost at opposite ends of the house with appellant between them or approximately so. Appellant claims that under these circumstances it showed a conspiracy between Chasteen and Butler to do what was done; that is, to shoot him. If Chasteen fired first, under the circumstances detailed by defendant, then evidently Butler .was acting in concert with Chasteen. He. was present aiding and encouraging and calling upon him to shoot, and Chasteen did shoot. This would give appellant the right under the law to have a charge submitted to the jury of his right of self-defense against both parties; they acting in concert against him. See Stacy v. State, 48 Tex. Cr. R. 95, 86 S. W. 327; Branch’s Criminal Law, § 450.

It is deemed unnecessary to quote the special charges asked by appellant and refused by the court submitting the issue of self-defense. It is sufficient to say that question, so far as appellant’s presentation of it to the trial court is concerned, is ample and full, and the court declined to so instruct in the general charge and refused to give the special instructions. A charge on self-defense was required in the case and raised by the facts, and this although the defendant testified his gun went off accidentally, and he failed to explain how the second shot was fired. The issue is made by the facts, and the jury could have taken the view of it, had they desired to do so, that Chasteen fired the first shot, and that appellant’s gun may not have gone off accidentally, but that appellant intentionally fired. If Chasteen fired first and appellant then shot either the first or second time, he still would be entitled to a charge on self-defense under the circumstances of this ease. It is a fundamental proposition that the charge of the court must appropriately instruct the jury upon every issue raised by the testimony.

For the reasons indicated the judgment ought to be reversed, and the cause is remanded. Being unable to concur in the af-firmance, I enter my dissent.


author: HENDRICKS, J.

text:
    AUSTIN FIRE INS. CO. v. BROWN.
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 8, 1913.
    Rehearing Denied Nov. 29, 1913.)
    1. Insurance (§ 131) — Preliminary Oral Contract — Validity.
    A preliminary oral contract of insurance will bind the insurer.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 203-209; Dec. Dig. § 131.]
    2. Insurance (§ 378) — Contract—Validity —Ownership of Property.
    That persons other than the party to a preliminary oral contract of insurance owned interests in the property insured did not invalidate the contract where the insurer’s agent knew the facts in relation to the ownership and that the contract was for the benefit of all the owners.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 968-997; Dec. Dig. § 378.]
    3. Principal and Agent (§ 54) — Contract— Authority of Subagent.
    A person authorized by an agent of a fire insurance company to represent him in negotiations for insurance has the same power to bind the insurance company to a contract of insurance as has the agent.
    [Ed. Note. — For other eases, see Principal and Agent, Cent. Dig. §§ 87-90; Dec. Dig. § 54.]

      4. Appeal and Error (§ 669) — Presentation fob Review — Statement of Eaots.
    Plaintiff in error’s objection that he did not obtain a fair statement of facts could not be considered when presented by a bill of exceptions which was refused by the trial court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2530-2545; Dec. Dig. § 569.]
    5. Appeal and Eeeob (§ 573) — Statement of Pacts — Duplicate.
    A statement of facts prepai’ed by the trial judge, upon a disagreement between counsel in reference thereto, need not be prepared in duplicate but need only be filed with the clerk of the court, where the case was tried, as part of the record of the cause.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 2560, 2562-2564, 2566; Dec. Dig. § 573.]
    6. Insurance (§ 131) — Liability of Insurer-Preliminary Oral Contract.
    Where a complete preliminary oral contract of insurance was entered into and the company ordered the cancellation of a policy issued thereon the day before the fire occurred, and such policy was never delivered or attempted to be delivered to the insured, and liability was denied by the company, the oral contract was determinative of the company’s liability.
    [Ed. Note. — Por other cases, see Insurance, Cent. Dig. §§ 203-209; Dec. Dig. § 131.]
    Error from Cottle County Court; W. E. Prescott, Judge.
    Action by C. L. Brown against the Austin Pire Insurance Company. Judgment for plaintiff, and defendant brings error.
    Affirmed.
    See, also, 147 S. W. 680.
    Wm. Thompson and Will C. Thompson, both of Dallas, for plaintiff in error. R. D. Browne, of Paducah, for defendant in error.

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

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

   HENDRICKS, J.

Quoting from plaintiff in error’s brief: “This is a suit by C. L. Brown, in the county court of Cottle county, Tex., against the Austin Pire Insurance Company, in which C. L. Brown has declared on a contract of fire insurance alleged to be in the sum of $420, which contract is alleged to have run from September 30, 1910, for 60 days, covering 4½ or 5 tons of broom corn, lost by fire, alleged to have occurred on September 28, 1910. Liability is alleged to have been denied soon after the fire. Plaintiff further alleged that Charlie Harper and Mitchell Halley owned with him an interest in the broom corn.” The defendant specially answered that proof of loss provided for in the policy had not been made under the terms of the contract; that the risk was prohibited on account of the interest of other parties in the property, alleging the measure of damages in the policy, a warranty clause, and the breach of each of the particular provisions of the contract set up by it as defenses.

Plaintiff, by an amended supplemental petition, alleged that the policy was never delivered to him and that the contract of insurance was oral and completed as to the subject-matter, the consideration, duration of the contract, and that the terms were in all things consummated. We are inclined to think that the evidence of both parties shows a completed verbal contract of insurance, and the same is practically undisputed, making a different case upon the record than upon a former appeal reported in 147 S. W. 680.

A preliminary oral contract of insurance is held to be good. While in this case other parties are shown to have been interested in the property, however, in the record it seems to be practically undisputed that notice of the other interests was given to the agent of the insurance company and' that the contract was for the benefit of Brown as well as for the other owners.

There is a question raised in the record as to the agency of one Drummond, who' seems to have conducted most of the negotiations with reference to the contract; the plaintiff in error asserting that he was not the agent of the fire insurance company at the time the contract was made and hence could not bind the company. The witness Drummond was placed upon the stand by the defendant and testified that at the very time the oral contract was made he was not the agent of the Austin Fire Insurance Company and did not become an agent of the company until afterwards. He, however, testified that he was representing Bowman, who it seems was the agent, with reference to the negotiations for the insurance, and, if so, he had the same power that the agent in fact could exercise; and any question with reference to his agency in fact really became immaterial.

The plaintiff in error complains, by a bill of exceptions, which was refused by the trial judge, that he did not obtain a fair statement of facts. The method used by him to present this to the higher court is such that we are unable to consider the matter. It seems that there was a disagreement between counsel representing the litigants as to the statement of facts, and the certificate of the court shows that, on account of such disagreement, the statement of facts was prepared by him as trial judge; neither does the law require that a duplicate, where this condition arises, shall be filed with the clerk of the court where the ease was tried, as a part of the record of the cause.

Plaintiff in error has numerous assignments predicated upon provisions of its policy of insurance, claiming a violation of the same by the defendant in error. It having been shown by the record that the fire insurance company ordered the cancellation of this policy a day before the fire occurred, and the same having never 'been delivered or attempted to be delivered to the defendant in error and liability denied by said insurance company, the oral contract of insurance, being complete, will control. Campbell v. American Fire Insurance Co., 73 Wis. 100, 40 N. W. 661.

A careful reading of this record, although different from the record on former appeal, and the rather undisputed condition of the material facts, impels us as a matter of law to affirm this judgment Most of the specifications of errors presented on account of this status of the record are immaterial.

Affirmed.