author: PRENDERGAST, P. J.

text:
    CHRISTIAN v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 5, 1913.
    Rehearing Denied Dee. 3, 1913.)
    1. Criminal Daw (§ 366) — Evidence — Res Gestze.
    A witness who was half a mile from the place of the shooting, but who immediately ran there upon hearing it, when decedent, who was lying on the ground and suffering intensely, voluntarily told him the circumstances of the shooting and described the assailants, could testify as res gestee as to what decedent told him about the shooting.
    [Ed. Note. — Eor other cases, see Criminal Daw, Cent. Dig. §§ S06, 811, 814, 819, 820; Dec. Dig. § 366.]
    2. Homicide (§ 203) — Dying Declarations.
    Where, when decedent was helped into the ambulance after being shot, witness handed decedent his pistol, when decedent told him to take the gun because decedent would never have any more use for it, it sufficiently appeared that decedent was conscious of approaching death without hope of recovery, within Code Cr. Proc. 1911, art. 808, so as to make such declaration admissible as dying declarations.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 430-437; Dee. Dig. § 203.]
    g. Witnesses (§ 268) — Cross-Examination.
    Great latitude is permitted in cross-examining witnesses.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 931-948, 959; Dec. Dig. § 268.]
    4. Criminal Daw (§ 1170%) — Appeal — Harmless Error — Question.
    There was no reversible error in the asking of questions, by the prosecuting attorney for impeachment purposes, as to whether a certain witness was not forgetful and as to whether she had not told stories, where such questions were not answered.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 3129-3135; Dec. Dig. § 1170%.]
    5. Criminal Daw (§ 508) — Testimony of Accomplices.
    Under the substantially direct provisions of Code Cr. Proc. 1911, art. 791, one who was also under separate indictment for killing. decedent was properly excluded from testifying in a prosecution of accused for the same offense.
    [Ed. Note. — For other cases, see Criminal Daw, CentDig. §§ 1099-1123; Dee.Dig. § 508.]
    6. Criminal Daw (§ 770) — Instructions.
    Instructions in a criminal law case must submit every phase of the case suggested by the evidence and every legitimate inference therefrom.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. § 1806; Dec. Dig. § 770.]
    7. Criminal Daw (§ 770) — Teiai>-Issues.
    In submitting the issues to the jury, the court is not limited by the evidence of accused for himself, but should submit every question suggested by the evidence, whether offered by the state or accused, or both.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. § 1806; Dec. Dig. § 770.]
    8. Criminal Daw (§ 770) — Instructions— Conformity to Issues.
    The court should instruct on the law applicable to every theory of guilt or defense, within the scope of the indictment, which the evidence tends to establish.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. § 1806; Dec. Dig. § 770.]
    9. Homicide (§§ 300, 301, 309) — Instructions — Issues.
    If the trial court has a reasonable doubt as to the necessity of a charge on manslaughter, self-defense, or defense of another, he should resolve such doubt in favor of accused and charge thereon.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630, 633, 649, 650, 652-655; Dec. Dig. §§ 300, 301, 309.]
    10. Criminal Daw (§ 822) — Instructions— Construction.
    A charge in a criminal law case should be construed as a whole and not by separate paragraphs.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 1990, 1991, 1994, 1995, 3158; Dec. Dig. § 822.]
    11. Criminal Daw (§ 805) — Instructions.
    The charge in a homicide case cannot and should not all be given in a single paragraph.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 1958, 1989; Dec. Dig. § 805.]
    12. Criminal Daw (§§ 820, 1144) — Instructions— Construction.
    The instructions must be given a reasonable construction, and the jury must be deemed to have placed such a construction upon it.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 1988, 2736-2764, 2766-2771, 2774-2781, 2901, 3016-3037; Dec. Dig. §§ 820,1144.]
    13. Criminal Daw (§ 1186) — Appeal — Harmless Error — Unnecessary Instruction.-
    Under Acts 25th Deg. c. 21, amending Code Cr. Proc. 1895, art. 723, prohibiting reversal because of error of commission or omission in the charge, unless the whole record shows that it was calculated to prejudice accused’s rights, a judgment of conviction should not ordinarily be reversed for unnecessary instructions in favor of accused.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 3215-3219, 3221, 3230; Dec. Dig. § 1186.]
    14. Homicide (§ 340) — Appeal — Harmless Error — Improper Submission op Issues.
    Even if the evidence, which showed that decedent, who was a deputy, hid behind a gate post and stepped out and presented a gun at accused and others as thejr were carrying away stolen property, did not raise the issues of manslaughter, self-defense, or defense of another, any error in submitting such issues was not prejudicial to accused, though his only defense was alibi.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 715-717, 720; Dec. Dig. § 340.]
    15. Criminal Daw (§ 792) — Instructions— Principals.
    Accused cannot claim, in a prosecution for homicide claimed to have been committed while accused and others were carrying away burglarized goods, that an instruction upon the law of principles was harmful to him, though abstractly correct, on the ground that his intention may have been only to burglarize the ear and steal the goods without intent to kill any person, where the instructions required a finding that accused himself fired the fatal shot.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 1818-1820; Dec. Dig. § 792.]
    16. Homicide (§ 18) — First Degree Murder — Perpetration op Burglary — Completion op Oppense — “In the Perpetration.” Where accused and others were engaged in hauling away the goods stolen from a burglarized ear, when accused shot an officer who was attempting to arrest them, accused was then “in the perpetration” of the burglary, within Pen. Code 1911, art. 1141, making- all murder committed “in the perpetration” of burglary first degree murder; the offense of burglary not then haying been completed.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 24-31; Dec. Dig. § 18.]
    17. Obiminal Law (§§ 741, 742, 1159) — Appeal — Jubx Findings — Conclusiveness.
    The credibility of the witnesses and the weight of their testimony is for the jury in the trial court and not for the Court of Criminal Appeals to determine.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1098, 1138, 1221, 1705, 1713, 1716, 1717, 1719-1721, 1727, 1728, 3074-3083; Dec. Dig. §§ 741, 742, 1159.]
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    Ed Christian was convicted of first degree murder, and appeals.
    Affirmed.
    F. M. Ball and George, Hancock & Hard-wicke, all of Dallas, for appellant. C, E. Lane, Asst. Atty. Gen., for the State.

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

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

   PRENDERGAST, P. J.

The appellant was convicted of murder in the first degree and the death penalty assessed.

We think it unnecessary to give any detail statement of the evidence by the several witnesses but will give a summary of it. as a whole. It clearly authorized the jury to believe and find that in daytime in the evening of September 9, 1910, four negroes, to wit, appellant, Ed Christian, Ed Long, George Williams, and Willie Wyatt, by mutual consent, met at the house of Ed Long, in the city of Dallas, Tex., and entered into a plot and conspiracy to that night rob or burglarize a Texas & Pacific box car while being pulled into the city of Dallas; that Wyatt lived about one mile, or some distance, from Ed Long’s, and that they all sent said Wyatt to his (Wyatt’s) house to get his six-shooter and to swap it with one Lee Jeffries for a Winchester; that appellant said he wanted to trade the pistol for a rifle for long-range shooting; that Wyatt went home, got his pistol, and went by to see Jeffries to make the said exchange but, not finding Jeffries, did not make the exchange but took the pistol back to Ed Long’s where the others were awaiting his return; that, when he returned to Long’s, two officers in plain clothes were there and, seeing'he had something under his coat, inquired what it was, and he told them it was his six-shooter. They thereupon arrested him for carrying the pistol, and soon afterwards placed him in jail and kept him until some time the next day; that the said four persons and no others entered into said plot and conspiracy; that that night, about or after midnight, said conspirators, other than Wyatt, did board a Texas & Pacific freight train pulling into Dallas and at or near the Fair Grounds burglarized one of the box cars and threw out therefrom, on the right of way, two boxes of goods; that Ed Long at once hired and procured a one-horse wagon and a small gray mule with small feet, returned to the place where they had thrown out said goods, the other two there awaiting his return, and as soon as he did so loaded the said goods into the wagon and started off therewith down the right of way; that Henry Bennett, the deceased, was a deputy sheriff whose duties were to look after offenses of burglarizing and stealing goods from railroad cars in said city; that immediately, or soon after this burglary, he was informed thereof and immediately went to investigate it and if possible apprehend the criminals and arrest them and prevent their getting away with said goods; that when he got near where the goods were thrown out he saw three persons loading said boxes in a wagon and then come down the right of way from where they had just loaded them, one of them in the wagon driving, the other two walking; that he secreted himself behind a gate post where, it seems, the parties were to come off of the right of way and leave the railroad, and that when they got very close to him he drew his pistol, presented it at them, and commanded them to halt or hold up; that then appellant, who was one of the two on the ground, immediately stepped from behind the mule and fatally shot the deceased, he dying the next day or the day following; that these three conspirators then made their escape with the goods and went to the residence that night of Lena Tenni-son with said goods in said wagon drawn by said mule, and appellant awoke him from his bed and endeavored to get him to let them leave these goods secreted at his house, but he declined, and they then left, sold the goods, returned the mule and wagon to the place and person from whom they had hired them, paid for the hire, and the next day divided with said Wyatt (who that day had been released from jail) the proceeds of the sale, paying him $50 as his portion thereof. The evidence tends to show that appellant then left Dallas and succeeded in keeping his whereabouts unknown to the officers and evaded arrest until some year or two later when he was found and arrested in Limestone county, Tex.

Appellant objected to the testimony of E. R. Meeks as to what the deceased said to him as to who shot him or the facts or circumstances surrounding the shooting, because his testimony did not show that at the time deceased made said declarations to the witness he was conscious of approaching death and believed there was no hope of recovery. The court admitted the testimony, holding that it was admissible as a dying declaration and also as res gestae. It was not objected to because it was not res gestae. If it was admissible as res gestae, the court’s ruling was correct, even though it might not have been •admissible as a dying declaration.

It is shown by the bill that the witness Meeks was about a half mile from where the shooting occurred and heard it; that he immediately ran there, found deceased shot and lying upon the ground at the place where the shooting occurred and at once voluntarily told the witness the circumstances of his being shot and described the person who shot him and one of the others, the wagon and the mule drawing it. Deceased was suffering intensely from the shot. We are well satisfied that the evidence was clearly admissible as res gestas. Rainer v. State, 148 S. W. 736.

The testimony of this witness further shows that, at the time. when they helped the deceased in the ambulance, he took deceased’s head in his lap and handed him his pistol; that the deceased replied to him: “Take the gun and take care of it. I will never have any more use for it.” To take the testimony of this witness alone, shown by the bill, we think it shows satisfactorily that at the time of making said declaration he was conscious of approaching death and believed there was no hope of recovery, substantially in compliance with the statute on this subject. Article 808, C. O. P. This was the only ground upon which the testimony was objected to. All the other requisites of the statute are shown to have been complied with. Miller v. State, 27 Tex. App. 63, 10 S. W. 445. It is shown that his wound was necessarily a fatal one.

Lena (Eugene) Tennison was an important witness for the state and gave material testimony against appellant. The defendant, on cross-examination of him for the purpose of impeaching him by Ada Tennison, asked him if he did not make certain statements to her which would be contradictory if not the reverse of what he testified on the trial. He denied making any such statements to her. Appellant placed her on the stand, and she testified that Lena Tennison did make the statements to her which he had denied. The state subjected her to a severe cross-examination, whereby her reputation for truth and veracity was placed in issue before the jury. What this examination was is in no way disclosed by the bill. Thereupon, for the purpose of sustaining her general reputation for truth and veracity, appellant introduced Mrs. Tabler, who showed that she had lived in Longview many years where Ada Tennison lived and that Ada had worked for her many years, and that she knew Ada’s general reputation for truth and veracity at Longview and it was good. On cross-examination of Mrs. Tabler by the state, it was shown by Mrs. Tabler that Ada had been operated on about a year before this trial and since then she had been in a feeble condition; and the state then asked her if Ada Tennison was not forgetful since said operation. Upon objection by the appellant this question was excluded from the jury and was not answered. Upon the state then asking some other questions and establishing that Mrs. Tabler had seen Ada Tennison every day for the past year, except about one month, ’ and that she had worked for her constantly, the state’s attorney repeated the question, “Tou state she is forgetful?” The appellant again objected to this question; and, while the bill states the court overruled the objection, it also shows that no answer whatever was had from the witness. Then, the state proceeding with its cross-examination of Mrs. Tabler, she testified that Ada Tennison’s reputation for truthfulness had changed within the last 12 months and that she was not as truthful as before then. Then asked, “She told you stories?” Appellant objected to this question, and the court sustained his objection, and no answer thereto was had.

Great latitude is always permitted in the cross-examination of a witness. It seems this bill merely complained of the said certain questions which were asked by the state’s attorney but not answered. The bill in no way shows any reversible error. Sweeney v. State, 146 S. W. 885, 886, and cases cited.

The only other bill appellant has is he complains that the court would not permit him to introduce Ed Long and have him testify. Said Long was then also under indictment in the lower court for the killing of deceased, as well as this appellant, though under a separate indictment. The court, of course, committed no error in refusing to permit Ed Long to testify. The statute itself makes him incompetent. Article 791, O. C. P. Appellant urges many objections to the court’s charge. Before discussing these objections, we will state some of the well-established rules pertaining to the giving of charges and how the court’s charge shall be construed. These are:

(1) The charge must submit to the jury every phase of the case made by the evidence and every legitimate deduction to be drawn therefrom.

(2) The charge should be framed with reference to the whole evidence adduced on the trial.

(3) The court is not limited or restricted by the testimony of appellant in his own behalf as to the issues to be submitted but, notwithstanding Ms testimony, should submit each and every phase of the case suggested by the evidence, whether the theory be presented by the evidence of the state or defense, or both.

(4) The charge should instruct the jury as to the law applicable to every theory within the scope of the indictment which the evidence tends to establish, whether favorable to the state or defendant.

(5) If the testimony creates a reasonable doubt in the mind of the trial judge as to the necessity; of- a charge on manslaughter and self-defense, or defense of another, in a murder trial, the doubt should be resolved in favor of the accused and such charge given, in which event, if he gives such charge or charges, no reversible error is caused thereby.

(6) In determining the sufficiency of a charge, it must be construed as a whole and not by-isolated extracts, excerpts, or paragraphs. It must be treated as an entirety, and regard must be had to the connection and interdependence of its several parts. A charge in a murder case should not and cannot properly all be given in one paragraph as a whole. It should necessarily be given in separate and distinct paragraphs.

(7) The charge and the language thereof must have a reasonable and not a strained and unreasonable construction, and the jury must be considered to be reasonably intelligent and .capable men, sufficiently so to put such reasonable construction on the charge, and not a strained and unreasonable construction thereon.

(8) By the act of March 12, 1897, amending article 743 (723), O. O. P., the Legislature expressly prohibited this court from reversing a ¡case because of an error of either commission or omission in the charge, unless such error, from the whole record, was calculated to prejudice the rights of the defendant. Even before then, but especially ever since that act, no conviction should necessarily and must not ordinarily be reversed for unnecessary instructions in favor of the accused. (We are not considering the amendment of article 743 under the Acts of 1913, p. 278.) -

Bearing these rules in mind, we will now state the court’s charge and appellant’s objections thereto. The court gave a full, fair, and complete charge on murder in the first and second degrees, as in ordinary murder trials. As we understand, appellant has made no objection .to either of these charges, as within -themselves wrong. The court also charged on manslaughter, self-defense, and defense of. another, and gave a complete and perfect charge on alibi. Also a charge on principals, reasonable doubt, and the reasonable doubt between the different degrees of murder and manslaughter.

One of appellant’s objections is to the entire charge of the court, considered as a whole, claiming that it is on the weight of the evidence and misled and confused the jury in that, as his sole defense was alibi, it impressed the jury with the belief that the trial court did not believe his defense but believed that.he was present and participated in the homicide. We have carefully, again and again, read and studied the court’s charge, in view, of this objection and of the rules above announced regulating what charges shall be given, how given and construed, and, in our opinion, this objection is wholly without foundation. Unquestionably the evidence imperatively required the court to submit murder in the first degree, even if it should be conceded that appellant’s sole defense was alibi. By doing so the court, as it should, required the jury to believe every essential fact to establish first degree murder beyond a reasonable doubt, and in no way, as we see it, did the court express or intimate, and by no reasonable construction of the language of the charge can it, by implication, be construed, that the court expressed any opinion whatever on the weight of the testimony or in derogation of appellant’s claimed alibi. The same may be said, and is true, of the submission every other question submitted to the jury for a finding. As we see it, the court expressed, neither directly nor by implication, any opinion to the jury as to his belief or disbelief affecting appellant’s claimed defense of alibi. We can hardly see, and appellant has not pointed out, how the court could or should have charged otherwise if it was necessary or proper to submit the several matters to the jury for a finding.

Again, the appellant complains that the court erred in charging on manslaughter and self-defense and defense of another, claiming that because his only defense was alibi, by submitting charges on these subjects to the jury for a finding, the court improperly led the jury to believe that he was present and participated in the killing and not to believe his special defense, and also claiming that there was no evidence in the record raising or tending to raise these several issues, and that it put him in the position of relying on inconsistent, conflicting, and antagonistic defenses, and that the giving of these charges, therefore, must necessarily result in a reversal.

Appellant contends that the evidence in this case established that he was guilty of murder in the first degree or not guilty at all. 1-I.e concedes in his brief that ordinarily a charge favorable to defendant would be no ground for a reversal, but claims that, because, as contended for by him, his sole defense was alibi, the submission of such charges when the evidence did not call therefor necessarily resulted in injury to him.

In Jones v. State, 63 Tex. Cr. R. 413, 141 S. W. 964, we correctly said: “Prior to the' enactment of article 743 (723), Code Criminal Procedure, in construing that article, as it had theretofore been, in connection with article 735 (715), this court had reversed cases where mere technical errors of commission or omission had been in the charge of the court. The Legislature, in amending article 743 (723), as it was amended by the act of March 12, 1897, expressly enacted that the judgment shall not be reversed, unless the error appearing from the record was calculated to prejudice the rights of the defendant, whereas, before then, said article, as it stood, seemed and was construed to require a reversal whether such error was calculated to injure or not. Even- before this article was amended, the Supreme Court in Wright y. State, 41 Tex. 246, held that a judgment of conviction would not be reversed for improper instructions given in favor of the defendant; and cases prior to Green v. State, 32 Tex. Cr. R. 298 [22 S. W. 1094], which held that where erroneous charges were given, if excepted to, even though such injury inured to the benefit of the accused, required a reversal, were expressly overruled by this court. In Briscoe v. State, 37 Tex. Cr. R. 464 [36 S. W. 281], on a trial for murder, where the evidence established murder in the first degree, it was held that defendant could not be heard to complain that the court gave him a charge upon murder in the second degree. Also in Gonzales v. State, 35 Tex. Cr. R. 33 [29 S. W. 1091, 30 S. W. 224], this court held that a defendant who had been convicted of manslaughter could not claim any possible injury from a charge on mutual combat, even when such charge was not required by the evidence and that a charge upon imperfect self-defense, though not called for by the evidence, could do no possible harm to appellant where there was no self-defense in the case. It has also been held in many cases by this court that even though a specific portion of the charge of the court may be erroneous, when it is more favorable to the accused than he was entitled to upon the particular questions, he had no ground to complain. Wilkins v. State, 35 Tex. Cr. R. 525 [34 S. W. 627]; Scruggs v. State, 35 Tex. Cr. R. 622 [34 S. W. 951] ; Delgado v. State, 34 Tex. Cr. R. 157 [29 S. W. 1070]; English v. State, 34 Tex. Cr. R. 190 [30 S. W. 233]; Daud v. State, 34 Tex. Cr. R. 460 [31 S. W. 376]; Loggins v. State, 32 Tex. Cr. R. 364 [24 S. W. 512] ; Lujano v. State, 32 Tex. Cr. R. 414 [24 S. W. 97] ; Boren v. State, 32 Tex. Cr. R. 637 [25 S. W. 775]; Green v. State, 32 Tex. Cr. R. 298 [22 S. W. 1094]; Kelley v. State, 31 Tex. Cr. R. 216 [20 S. W, 357]; Sutton v. State, 31 Tex. Cr. R. 297 [20 S. W. 564]; Massey v. State, 31 Tex. Cr. R. 371 [20 S. W. 758] ; Wolfforth v. State, 31 Tex. Cr. R. 387 [20 S. W. 741]; Gonzales v. State, 31 Tex. Cr. R. 508 [21 S. W. 253]; Weathersby y. State, 29 Tex. App. 278 [15 S. W. 823]; Surrell v. State, 29 Tex. App. 321 [15 S. W. 816]; Hawthorne v. State, 28 Tex. App. 212 [12 S. W. 603]; Walker v. State, 28 Tex. App. 503 [13 S. W. 860] ; MeCleavland v. State, 24 Tex. App. 202 [5 S. W. 664]; Carlisle v. State, 37 Tex. Cr. R. 108 [38 S. W. 991].”

Of course there might be a ease, when appellant’s defense was alibi, where the court’s charge was so worded as objections like those of appellant in this case might be well founded. This ease, however, and the charges of the court do not present the questions in such a way as to be subject to this objection, even if it should be conceded that the evidence did not raise the questions of manslaughter, self-defense, and defense of another.

For the sake of discussing the question further, however, .suppose that it be conceded that the evidence did not so raise manslaughter, self-defense, and defense of another as to call for a submission of them or any of them to the jury for a finding, yet how is it possible that the appellant was injured or could have been injured thereby? Without doubt, by submitting manslaughter the court gave the jury an opportunity to find him guilty of manslaughter only and not murder in the first degree, and so by submitting self-defense and defense of another the court clearly gave the jury the authority to find him not guilty at all; and as we see it, considered as a whole, the submission of these questions to the jury by the court were each and all favorable to appellant and in his behalf and could not and did not prejudice him in the least. Again, we cannot say that the evidence may not have been sufficient to raise each of these questions in appellant’s favor. If so, under the above well-established rules there was no error in submitting them which could or should require a reversal of this case.

Take for instance the question of manslaughter. Under one theory and phase of the evidence it might well be contended that it tends to show that the attempted arrest of appellant and his confederates by the deceased at the time deceased was killed was not a legal arrest or attempt to arrest. The officer Bennett, it was shown, secreted himself from appellant and his confederates by getting behind a post as they were coming toward him, and when they got within a short distance of him he suddenly emerged from behind the post, presented his drawn pistol suddenly, and demanded that the parties halt or hold up; that he did not then disclose to appellant and his associates that he was an officer or was attempting to make a legal arrest of them. Mr. Branch, in his work- on Criminal Law, in one paragraph of section 437, says: “If attempted arrest is illegal, defendant has the same right to resist as if the officer was merely a private citizen. Lynch v. State, 41 Tex. Cr. R. 519 [57 S. W. 1130]; Miers v. State, 34 Tex. Cr. R. 161 [29 S. W. 1074, 53 Am. St. Rep. 705]; Earles v. State, 94 S. W. 466.” In another paragraph, under the same section, he says: “The law sets such a high value upon the liberty of a citizen that an attempt to arrest him unlawfully is esteemed a great provocation and, if it produces such passion as renders him incapable of cool reflection, may reduce the homicide to manslaughter. Ex parte Sherwood, 29 Tex. App. 335 [15 S. W. 812]; Dyson v. State, 14 Tex. App. 461; Miller v. State, 31 Tex. Cr. R. 639 [21 S. W. 925, 37 Am. St. Rep. 836]; Meuly v. State, 26 Tex. App. 274 [9 S. W. 563, 8 Am. St. Rep. 477]; Mooney v. State, 65 S. W. 927; Earles v. State, supra; Ledbetter v. State, 23 Tex. App. 258 [5 S. W. 226]; Peter v. State, 23 Tex. App. 687 [5 S. W. 228]; Goodman v. State, 4 Tex. App. 352; Johnson v. State, 5 Tex. App. 47; Ross v. State, 10 Tex. App. 464 [38 Am. Rep. 643]; Jones v. State, 26 Tex. App. 12 [9 S. W. 53, 8 Am. St. Rep. 454]; Miundine v. State, 37 Tex. Cr. R. 15 [38 S. W. 619]; Alford v. State, 8 Tex. App. 566; Hardin v. State, 40 Tex. Cr. R. 220 [49 S. W. 607]; Lynch v. State, supra; Cortez v. State, 44 Tex. Cr. R. 182 [69 S. W. 536]; Scott v. State, 49 Tex. Cr. R. 389 [93 S. W. 112].” Again, in another subdivision under said section, he says: “Whether arrest was legal or not, the power to arrest may be exercised in such a wanton and menacing manner as to threaten the accused with loss of life or serious bodily injury. In such a ease, though attempted arrest was lawful, the killing would be justifiable. Jones v. State, 26 Tex. App. 12 [9 S. W. 53, 8 Am. St. Rep. 454]; Ex parte Sherwood, 29 Tex. App. 336 [15 S. W. 812]; Alford v. State, 8 Tex. App. 568. Or, if attack was of a milder character, manslaughter would be presented from such character of arrest. Vann v. State, 45 Tex. Cr. R. 443 [77 S. W. 813, 108 Am. St. Rep. 961]; James v. State, 44 Tex. 314.”

The court in charging on manslaughter, after giving the proper and necessary definition thereof, strictly in accordance with the statute on the subject, and defining sudden passion as defined by the statute and adequate cause, as so defined, also charged: “You are further instructed that if an officer or other person attempts to seize or arrest an offender or supposed offender and uses more force than is necessary for such purpose, or uses unreasonable means to seepre the arrest or detention of such offender, this would be deemed in law an adequate cause; and you are further instructed that any fact or circumstance, or set of facts or circumstances, such as would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper sufficient to render a man incapable of cool reflection, would be deemed in law adequate cause.” Then further told the jury that in order to reduce voluntary homicide to manslaughter it was necessary that adequate cause existed to produce the state of mind referred to sufficient to render it incapable of cool reflection, and also that such state of mind did actually exist at the time. Then further, properly following the statute, told them that it was their duty, in determining the adequacy of the provocation and the state of defendant’s mind at the time, to consider all the facts and circumstances in evidence. Then correctly submitted to the jury whether or not appellant was guilty of manslaughter and required the jury to believe beyond a reasonable doubt everything that was necessary to do so and, if so, to find him guilty of manslaughter.

In charging on self-defense and defense of another, the court correctly laid down the principles of law on that subject and, among other things, told the jury, in substance and effect, that a person had the right to seize personal property which had been stolen and take charge of the supposed offender when making off with such goods and take him before a magistrate for examination; and such person may use all reasonable m'eans to so secure the seizure of the property and the detention of the supposed offender, but that no greater force was permitted than' necessary for that purpose, and, if greater force than necessary was used by deceased in the attempted seizure of the property or arrest or detention of the parties, the same was illegal, and the defendant or any of said parties had the legal right to resist it and if necessary, or apparently necessary in their defense, to kill Bennett while engaged in such unlawful arrest, and that what he had a right to do for himself he had the right to do for his companions. Then submitted self-defense and-defense of another on these lines and told the jury, if appellant shot the deceased under any such circumstances, to find him not guilty.

Doubtless the learned trial judge, in properly guarding appellant’s rights, reasonably concluded that the whole evidence in the case raised and tended to raise the questions of manslaughter, self-defense, and defense of another in appellant’s favor and, in order to gaurd all of his rights and that he might have the benefit thereof, submitted these questions to the jury for. a finding. We think the court did right in submitting these questions, or at least that his doing so, under the circumstances and the law, presents no reversible error.

The court also charged the law of principals. As we understand, appellant concedes that the charge abstractly is a correct one and does not contend that as an abstract question it is incorrect. But he does contend that to give the charge at all was inapplicaWe and hurtful in that it would make him liable for the act of one of his co-conspirators, which was not contemplated by him or intended by him. In other words, as an illustration, that it may have been his intention only to burglarize the car and steal the goods and not to kill any person or officer in the consummation thereof, and that one or the other of his associates went outside of and beyond that purpose and for some intent of their own, unknown and not participated in by him, intentionally killed the officer. It is unnecessary to enter into an extended discussion of this question. We think it altogether proper and pertinent that the court should have charged the general principles of the principals in this case. It was necessary to do so in order that the jury might thoroughly understand and comprehend the questions necessary for them to consider and decide. Appellant’s contention cannot be maintained, because the court, in every instance where it submitted the killing of the deceased, expressly required the jury to find that appellant himself, and not any of his confederates, fired the shot and did the killing. The charge not only required this expressly as an affirmative fact but also distinctly and clearly told the jury that: “If you find and believe from the evidence that some party or parties shot and killed the deceased at the time and place charged in the indictment, but you have a reasonable doubt as to whether it was this defendant who did so, you will acquit him.” Again: “Or if you believe from the evidence that Lena Tennison was present with parties other than this defendant and that the said Lena Tenni-son shot and killed the deceased, you will acquit the defendant; and, if you have a reasonable doubt as to whether or not this is true, you will give the benefit of such reasonable doubt to the defendant, and acquit him.” And still again in submitting alibi he charged: “If the evidence raises in your minds a reasonable doubt as to the presence of the defendant at the place where 'the offense was committed at the time of the commission thereof, you will find him not guilty.” So that in no contingency is the charge of the court on this subject erroneous as contended.

The law, at the time this offense was committed and the case tried, by article 1141, P. C., was: “All murder committed by poison, starving, torture, or ■ with express malice, or committed in the perpetration, or in the attempt at the prepetration, of arson, rape, robbery or burglary, is murder in the first degree.” The court, in accordance with the evidence and this statute, in substance and effect defined to the jury burglary and theft in connection therewith and gave an appropriate charge that if appellant and his co-conspirators had the agreement or understanding that they would arm themselves with a pistol or other deadly weapon and shoot or kill any person or persons who opposed them in the execution of their said design to commit burglary and theft and carrying away of the property acquired thereby, and that these persons were present at the time the deceased attempted to arrest them and prevent their carrying away the stolen property, and appellant thereupon shot and killed the deceased unlawfully and with his express malice aforethought, his offense would be murder in the first degree. Appellant contends that this was inapplicable be- ' cause the burglary and theft had been completed and that they were not engaged in the perpetration thereof at the time of the killing. Tn our opinion his contention is entirely too restrictive. The evidence in effect shows that the appellant and his eoeonspirators entered into a conspiracy to do, and they were doing, everything that the charge submitted on this subject, and that, while the ear had been broken open and the goods thrown out, the appellant had not completed these offenses in contemplation of this statute, because they were still engaged in the same and were then and there, as a part of the acts themselves, attempting to take away the stolen goods. In other words, they were in such juxtaposition to the burglary and theft as that their acts at the time should and would be considered as in perpetration of the burglary and theft. We think no error is pointed out by appellant on this ground. No charge on circumstantial evidence was called for, and none should have been given.

The court gave a complete and admirable charge on the subject of an accomplice’s testimony and in addition gave the only charge on the subject which was requested by appellant. Among other things he charged that said Wyatt was an accomplice, and correctly submitted to the jury for a finding whether or not Lena Tennison and John Hawkins were accomplices, and, if the jury found that these latter two were accomplices, gave a correct charge as to their corroboration and the corroboration of each of them, as well as of the said Wyatt. We are inclined to think that the evidence as a whole shows that Hawkins nor Tennison were not accomplices, but, if so, that not only they, but also said Wyatt, were amply and sufficiently corroborated under the law and the charge of the court. There were contradictions on some material points in the evidence. There was also impeaching testimony and supporting testimony as to some of the witnesses.

The credibility of the witnesses and the weight to be given to their testimony was for the jury, not for this court. Most of the material facts were unquestionably established without much contradiction or, perhaps in some instances, none. If physical facts and human testimony are to be credited, then clearly .the evidence in this case was sufficient to cause the jury to believe beyond a reasonable doubt that appellant not only entered into the conspiracy to rob the car, steal the goods and carry them off, and kill whoever attempted to prevent this, or arrest him, but that he only, and not either of his co-conspirators, with his malice aforethought shot and killed the deceased. The jury, who were wholly disinterested, impartial, and fair, have so found upon their solemn oaths. The learned trial judge, who heard all the testimony, by his action in overruling the motion for new trial has sanctioned the verdict of the jury and agrees with them in their finding.

There being no reversible error, this court has no other alternative than to affirm this judgment, which will be accordingly ordered.


source: Caselaw Access Project

author: DAVIDSON, J.

license: Public Domain

text:
    TREVINO v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 19, 1913.)
    1. Homicide (§ 309) — Adequate Cause.
    It was not error in a homicide case to refuse to submit in the charge on manslaughter the insulting language by decedent, which consisted in calling accused a son of a whore and disgraced.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. §§ 649, 650, 652-655; Dec. Dig. § 309.]
    2. Homicide (§ 301) — Issues — Sele-De-
    EENSE.
    Where the only question of self-defense raised by the evidence in a homicide case was that accused was defending himself against apparent danger, in that he thought decedent had drawn a pistol, and also that he was defending another who was attacked by decedent; it was error to instruct that homicide was justifiable when committed in protecting another against other unlawful attacks besides one with intent to murder or inflict serious bodily injury, and in such case all other means must be first resorted to, to prevent injury.
    [Ed. Note. — Eor' other cases, see Homicide, Cent. Dig. §§ 624, 633; Dec. Dig. § 301.]
    3. Homicide (§ 301) — Sele-Deeense—Issues.
    Where there was evidence in a homicide case that accused did the cutting to defend another, who was then being_ attacked by decedent, the issue of the killing in defense of another should have been submitted.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. §§ 624, 633; Dec. Dig. § 301.)
    4. Homicide (§ 295) — Manslaughter—Adequate Cause.
    It was error to refuse a requested charge in a homicide case submitting the question of insulting conduct by decedent toward accused’s mother; the evidence raising that issue.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 606-609; Dec. Dig. § 295.]
    5. Homicide (§ 286) — Issues—Intent to Kill.
    Where the evidence showed that accused and decedent, who were strangers, met suddenly in the nighttime, and accused testified that he cut decedent only once with a pocket knife, which was not shown to have been a dangerous weapon, merely to defend himself and another against threatened attack, and without intent to kill, the court should have instructed that accused should be acquitted of homicide if he had no intent to kill.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 586-591; Dec. Dig. § 286.]
    Appeal from District Court, Bexar County; W. >3. Anderson, Judge.
    Alvino Trevino was convicted of killing by cutting with a knife, and he appeals.
    Reversed and remanded.
    Chambers & Watson and Dwyer & Dwyer, all of San Antonio, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, J.

Appellant was convicted

for killing Erigido Gaudino by cutting him with a knife; his punishment being assessed at five years’ confinement in the penitentiary.

The statement of facts, in substance, shows that appellant and Martinez lived near what is called the First Mission below the city of San Antonio. Martinez owned a buggy and a mule. In the evening he hitched this mule to the buggy, and he and appellant drove into the city of San Antonio, to a wagon yard, took the mule from the buggy, leaving the harness on the mule, and hitched the animal. They went thence to a saloon and drank two or three schooners of beer. From that point they went to what they called a sporting house and danced with the girls. After dancing a while they concluded to return home, and went to the wagon yard to hitch their team. In the wagon yard somewhere this trouble occurred. The witnesses differ as to the place and circumstances. Some of the state’s witnesses testified they heard a scuffling by some men behind a water tank and heard a lick. • The parties scattered and went away. Martinez turned state’s evidence, and his case was dismissed and his testimony used. After giving an account of where he lived, and the distance from the city, he narrates the fact that on the evening of October 12, 1912, he was with defendant, who went with him in his buggy to San Antonio. He was driving a mule. 1-Ie went to the campyard of Fernandez on Matamoras and Santa Rosa streets, reaching there before dark. They unhitched the mule from the buggy, and tied it in the campyard, but did not take the harness off. They went to a sporting' house and danced with the girls, staying there until about seven o’clock. There they met Vidal Aguilar who also danced with the girls; thence they went to a saloon directly in front of Fernandez’s store. He says that the three, defendant, Aguilar and himself remained about 15 or 20 minutes in the saloon and had two or three rounds of beer, smoking cigarettes in the meantime. They left the saloon, went to the campyard, and hitched up the mule with a view of going home. The three left the saloon at the same time and in the following order: “I led the way; Vidal Aguilar was next, and Alvino Trevino, the defendant, was third. We entered Domingo Fernandez’s campyard in this same order. It was dark at that time, and about 7:30 o’clock in the evening. I passed some one in the campyard, but do not know who it was, because I could not recognize him on account of the darkness. I went on to where the mule was, to hitch her up, and the defendant came up and said he had cut some one. Vidal Aguilar went on ahead of us out of the campyard, and the defendant and I hitching up the buggy, drove out of the campyard in a different direction to what we drove in, and went on towards home. After going a piece, we caught up with Vidal Aguilar, and he got in the buggy with us. We then drove slowly down South Flores street, until we reached the depot, where we were stopped by some police officers, who arrested us, and we were brought back to town, and placed in the city hall, all three of us. * * * I saw the defendant strike the person I passed this way (illus-ira ting as one would thrust with a knife). It was after we had left the campyard and picked up Aguilar that the defendant said, T cut- him.’ ” On cross-examination he says he made a trade with the state by which he was to be immuned from punishment on condition he testify. This witness contradicts the state’s witness Dunbar about some matters that occurred, which we deem unnecessary to state. The defendant testified practically, as did the witness Martinez, as to their place of residence, going to the city, dancing with the girls, drinking beer and going to the wagon yard, and the order of their going. He then states: “On passing through the campyard I heard some one say, ‘Are you Antonio Martinez?’ and Antonio Martinez replied, ‘No,’ whereupon the party grabbed a hold of him and then began to scuffle, and I thought he was trying to rob Antonio Martinez, as he had his arms around him, and I rushed up to where he was, after having opened up my knife, to see what he was doing to my companion, Antonio Martinez. When I got there, which was in a few seconds, I put my hand on his shoulder and said, ‘What do you mean?’ and he turned and let go of Antonio Martinez and cursed me, in Spanish (which is omitted, but which, translated in English, he says, means), saying that.T was the son of a whore and disgraced,’ and at the same time he drew some dark object from his waist, which I took to be a pistol, and he then made towards me, when I cut him with my pocketknife to defend myself. The deceased then went one way and I went the other, and I went to the buggy and told Antonio Martinez I had cut this man. We then hitched up the mule and got in the buggy. Yidal Aguilar had gone on ahead. We drove out in another direction than which we came in, and went on towards home. This was about half past 7 o’clock at night. I did not know the deceased, and if I had it was too dark for me to recognize him. I do not remember ever having seen him before. I did not intend to kill him, but simply cut him in defense of myself, and to keep him, as I thought, from shooting or killing me, or doing me serious bodily harm. I could have cut him several times more if I had so desired, but when he retreated after having been cut by me, I went my way and he went his. I did not know that he had been badly cut, or how badly he was cut, until told afterwards when I was in jail.” He describes the trip down South Flores street until arrested by the officers as did the witness Martinez. The evidence shows that deceased and defendant were both boys under 21 years of age, and but little difference in their ages.

The court gave a general charge on manslaughter, telling the jury they might look to all the facts and circumstances to determine the question of adequate cause and consequent passion in passing upon the case.

Objection was urged that the court should have submitted the insulting language used which applied to defendant as being the son of a whore and disgraced. Under case of Fitzpatrick v. State, 37 Tex. Cr. R. 20, 38 S. W. 806, the court was not in error.

In submitting the issue of self-defense, the court gave the usual charge in this respect. After giving this charge he further charged the jury as follows: “Homicide is justifiable in the protection of the person against any other unlawful and violent attack besides one with intent to murder, or to inflict serious bodily injury, and in- such ease all other means must be resorted to for the prevention of the injury, and the killing must take place while the person killed is in the very act of making such unlawful and violent attack.” Exception was reserved to this phase of the charge, which exception is well taken. This issue was not in the ease. Appellant’s right of self-defense arose from his testimony under two views: First. That he was defending himself against apparent danger; that is, that the party whom he cut had drawn a weapon which he thought was a pistol. This presented the ordinary theory of self-defense, based upon apparent danger. The second view is under the defendant’s testimony he was entitled to a charge which was not given, and for which exception was reserved, for the defense of Martinez, whom he swears he found attacked by the deceased, and whom he thought deceased was trying to rob. These two issues of self-defense were in the case, and the second phase of it should have been charged as contended by appellant. Therefore we hold, with respect to this phase of the case, that the court was in error in charging with reference to any other unlawful and violent attack besides the one with intent to murder or inflict serious bodily injury, requiring him to resort to all other means for the prevention of such injury, etc.; and, second, that the court should have charged the jury that he had a right to defend Martinez if he believed at the time Martinez’s life was in danger or he was being robbed.

In reference to the failure of the court to charge on insulting conduct towards the mother of defendant, appellant excepted to the failure of the court to so charge, and asked special requested instructions, which were refused by the court. This was not error.

It will be remembered that defendant testified, in connection with the circumstances attending the difficulty, that he used his knife, not for the purpose of killing or with the intent to kill, but in defending himself against the threatened attack; that he only cut one time, and the parties separated. He further testified that he used a pocketknife. There is no evidence in the record as to the size of the pocketknife or its dangerous character, or that it was a deadly weapon. To meet this phase of the case appellant requested the court to submit to the jury a charge which would instruct them to acquit him of homicide if they believed, under the circumstances, that he had no intent to kill. We believe under our statutes that, under the facts of this case, this charge should have been given. It is not shown to have been a deadly weapon, nor that the wound was inflicted in such manner as showed a cruel or evil disposition, and from any viewpoint of the testimony it was a sudden and unexpected meeting, a difficulty occurring between two boys who were strangers to each other "and at night. .If the defendant’s testimony be true, he did not intend to kill deceased. This raised the issue in connection with the other facts. If some of the state’s testimony is true — that is, that there was a difficulty or scuffle at the water tank not seen by them — then we have no facts otherwise than the mere fact of the struggle or scuffle, and the fact that a lick was struck. Prom that viewpoint we have no evidence as to the attendant circumstances. These witnesses did not see the difficulty, as it was behind a water tank, and knew nothing about it further than they heard a scuffle and lick struck. Prom any viewpoint of this case we are of opinion that a charge on intent to kill should have been given.

Application was made for a continuance, which was overruled. Without taking up the grounds of this phase of the record or discussing it, it will be disposed of with the statement that the witnesses may be obtained upon another trial.

There was a motion made to quash the special venire that is not discussed, as it may not occur upon another trial, and will hardly occur as it did upon this trial.

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


author: HARPER, J.

text:
    STRICKLAND v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 5, 1913.
    Rehearing Denied Dec. 3, 1913.)
    1. Criminal Law (§ 448) — Evidence—Opinion.
    Testimony of one, after testifying in what direction, as shown by tracks, deceased’s horse was traveling when near a tree, that this would put the left side of a man, riding, towards the tree was not objectionable as an opinion; it being a fact within his knowledge.
    LEd. Note. — Por other cases, see Criminal Law, Cent. Dig. §§> 1035-1039, 1041-1043, 1045, 1048-1051; Dec. Dig. § 448.]
    2. Criminal Law (§ 413) — Evidence—Self-Serving Declaration.
    Statement of defendant, a short time before the killing, to a third person that he had been told deceased had charged defendant- and his sister-in-law with improper conduct is a self-serving declaration.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 928-935; Dec. Dig. § 413.]
    3. Criminal Law (§ 814) — Instructions — Requests — Applicability to Evidence.
    Defendant’s testimony showing that he had not armed himself and gone in search of deceased for an explanation of his remarks about defendant and his sister-in-law, but that on his way to ask explanation from another he met deceased by accident, the giving of a requested chai'ge that he had the right to seek deceased and demand an explanation of his remarks and, if he anticipated danger, to arm himself was not called for.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1S60, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. §• 814]
    4. Homicide (§ 300) — Self-Defense — INSTRUCTIONS — Provoking Difficulty.
    The qourt having given a full and unrestricted charge on the issue of self-defense, and not having limited the right of self-defense, by instructing on the issue of provoking the difficulty, it was not necessary to give a requested charge that defendant had the right to seek deceased ana demand an explanation of the remarks he had heard deceased had made in regard to hin and his sister-in-law and, if he anticipated danger, to arm himself.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dee. Dig. § 300.*]
    5. Criminal Law (§ 776) — Instructions — Matters in Issue — Reputation.
    Testimony of defendant that deceased had made some sighting remarks in regard to the virtue of D., and of T. that deceased had told him there were reports about the conduct of defendant land D. and had requested him to so inform defendant, with the denial by defendant that there was any ground for such reports, without any more by either side, does not put D.’s reputation in issue; it being necessary for this that there be some testimony that her reputation was either good or bad, so that there
    casion for giving defendant’s request-tions that, as he put in issue, by his the reputation for virtue and chas-the state had the right also to offer In this issue in rebuttal of defendant’s was no od ed instruct evidence, I tity of D.; evidence on evidence.
    other cases, see Criminal 1838-1845; Dec. Dig. § [Ed. Nóte. — Por Law, Cent. Dig. 776.]
    6. Criminal Law (§ 784*) — Case Depending. on Circumstantial Evidence.
    Though defendant was the only eyewitness and testified he shot deceased in self-defense, yet he by Jus testimony having admitted he did the killingj, and others having testified that he admitted tjo them that he shot deceased, it was no longer I a case depending solely on circumstantial evidence.
    ed. Note. — Por other cases, see Criminal Law, Cent] Dig. §-§ 1883-1888, 1922, 1960; Dec. Dig. § 784.*]
    7. Criminal Law (§ 1090) —Appeal — Review— bfECESSITY OF BILL OF EXCEPTION.
    Rulings on admissibility of evidence, complained of in motion for new trial, cannot be reviewed on appeal, in the absence of bills of exception.
    [Ed. Note. — Por other cases, see Criminal Law, Celt. Dig. §§ 2653, 2789, 2803-2822, 2825-2827 , 2927, 2928, 2948, 3204; Dee. Dig. § 1090.]
    8. Criminal Law (§ 1090) — Appeal — Review— ifECESSITY OF BILLS OF EXCEPTION.
    The ipatter of alleged remarks of the district attorney, complained of in the motion for new trial, cannot be reviewed on appeal; the fact of his making them not being verified by bills of exception.
    te. — Por other cases, see Criminal [Ed. Nq__ Law, Cei.t. Dig. §§ 2653, 2789, 2803-2822, 2825-28271 " ~ " 1090.*] 2927, 2928, 2948, 3204; Dec. Dig.]

      9. CRIMINAL Law (§ 728) — Agreement of District Attorney — Requesting Charge.
    That the district attorney argued to the jury that the letter of deceased to defendant’s sister-in-law was not genuine but was fixed up by defendant, as to which letter defendant alone testified, though his sister-in-law was in court, was not reversible error; no special charge in regard thereto having been requested by defendant.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1689-1091; Dee.’ Dig. § 728.]
    Appeal from District Court, Houston County; John S. Prince, Judge.
    Henry Strickland was convicted of manslaughter, and appeals.
    Affirmed.
    J. Y. Lea, of Houston, J. M. Hansbro, of Coldspring, and Adams & Young, of Crockett, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For other cases see same topic and section NUMBER in Dee. Dig. 4 Am. Dig. Key^No. Series & Rep’r Indexes

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

   HARPER, J.

Appellant was indicted for murder, and, when tried, convicted of manslaughter, from which judgment he prosecutes this appeal.

There are two bills of exceptions in the record in regard to the introduction of testimony, one to the action of the court in permitting the witness S. F. Fain to testify, after testifying in what direction the deceased’s horse was traveling when near a certain pine tree, that this would put the left side of a man, riding, towards the pine tree. This, it is claimed, is an opinion of the witness, based on a hypothetical question. The witness saw the tracks on the ground and of course could tell as a fact the direction in which the horse was traveling, and it would also be a fact within his knowledge as to which side of a man would be towards a given object on the ground, if he was riding the horse. The body of deceased is shown to have fallen on the ground some 40 steps from where the horse turned near this tree, and, under the facts of this case, the court ruled correctly in admitting the testimony.

The other bill relates to the exclusion of certain testimony. Appellant testified that Andrew Dawson had told him the day of the killing of certain derogatory remarks deceased made in regard to appellant and his sister-in-law, Miss Bertha Dawson, charging them with improper conduct. When his witness Berry Welch was on the stand, he desired to prove by Welch that he (appellant) had told Welch about the matter a short time before the killing. This would be but a self-serving declaration, made before the homicide, and the court correctly held that any testimony tending to show that appellant had been so informed would be admissible, but not what appellant said to some third person he had been told.

The appellant requested the court to instruct the jury that appellant had the right to seek deceased and demand an explanation of the remarks he had heard deceased had made in regard to him and his sister-in-law, and, if he anticipated danger, he had the right to arm himself. In some cases, under the facts in those cases, it has been held that such a charge should be given. But not under evidence similar to that adduced on this trial. Appellant does not claim that he armed himself and went in search of deceased to ask for an explanation of the remarks deceased had made. His testimony is that he went to see Berry Welch about remarks he was informed Welch made, and, when Welch denied making such remarks, that, as he had been informed by his Uncle Charlie Williamson that Welch had made such remarks, he and Welch went to see his Uncle Charlie in regard to the matter. Welch and appellant both so testify, and appellant further testified: “I was not expecting to meet Pack (deceased) there at that time, and we were within a few steps of one another when I first seen him.” In no syllable of appellant’s testimony is there a suggestion that he was on his way to see Pack to demand an explanation of him, but his whole testimony is that he went to see Welch and demanded an explanation of him, and then was on his way to have Welch and his Uncle Charlie face each other about the remarks he had heard. So, under the testimony, this charge was not called for, and there was no error in refusing it Appellant shows by his testimony, if true, that his meeting with deceased was purely accidental. However, if he had testified that he had gone to see deceased to demand an explanation, and the shooting occurred in consequence, the court did charge the jury: “The defendant had the right, under the evidence in this case, to arm himself with a pistol, if he thought himself in danger, when demanding an explanation of all persons that he believed had reflected on the character of his sister-in-law.” In the case of Williford v. State, 36 Tex. Or. R. 414, 37 S. W. 761, it was held by this court that it is only when the court limits the defendant’s right of self-defense by instructing the jury on the issue of provoking the difficulty that it is necessary to give a charge of the character requested by appellant In this case the court did not charge on provoking the difficulty but gave a full and unrestricted charge on the issue of self-defense, telling the jury: “Upon the law of self-defense you are instructed that if from the acts of the said Paschal Williamson, or from his words coupled with his acts, there was created in the mind of the defendant a reasonable apprehension that he (the defendant) was in danger of losing his life or of suffering serious bodily harm at the hands of said Paschal Williamson, then the defendant had the right to defend himself from such danger or apparent danger as it reasonably appeared to him at the time, viewed from his standpoint. And a party so unlawfully attacked is not bound to retreat in order to avoid tbe necessity of killing bis assailant. It is not necessary to tbe right of self-defense that tbe danger should in fact exist; if it reasonably appears from tbe circumstances of tbe case that danger exists, tbe person threatened with such apparent danger has tbe same right to defend against it and to tbe same extent that be would have were tbe danger real. And, to determine whether or not there was reason to believe that danger did exist, tbe appearances must be viewed from the standpoint of tbe person who acted upon them and from no other standpoint. Now, if you believe that tbe defendant shot and thereby killed Paschal Williamson as a means of defense, believing at tbe time be did so (if be did so) that be was in danger of losing bis life or of serious bodily injury at tbe bands of said Pasebal Williamson, then you will acquit tbe defendant.” Having instructed tbe jury as be did in bis main charge, there was no error in refusing this special charge.

Again, as tbe reputation of Miss Bertha Dawson was not made an issue in tbe case, it was not necessary to give tbe special charge requested by appellant that, as “tbe defendant in this case put in issue by bis evidence tbe reputation for virtue and chastity of Bertha Dawson, tbe state bad tbe right also to offer evidence on this issue in rebuttal of defendant’s evidence.” Tbe defendant offered no evidence that tbe reputation of Miss Bertha Dawson was good, and tbe state offered none that it was bad. Tbe only way this came in tbe case was that appellant said deceased bad made slighting remarks in regard to her virtue; that be beard that Welch bad also made such remarks, which Welch denied; that bis Uncle Charlie said Welch had so stated. Dr. Tinsley said that deceased bad told him that there were reports out about tbe conduct of appellant and Miss Bertha and requested him to so inform appellant Appellant denied that there were any grounds for such reports,'and so far as this record discloses there no such grounds, but this was not putting her reputation in issue, until some testimony was offered that her reputation was either good or bad, and no such testimony was offered by either side; consequently there was no occasion to give the special charge requested.

Appellant contends that as defendant testified he shot deceased in self-defense, and he being the only eyewitness, necessarily the state depended on circumstantial evidence to prove that the shooting was not done in defense of his person, such as that deceased was shot in the back, etc. This doubtless is true that the state depended wholly upon circumstantial evidence to prove that appellant was not justified in slaying the deceased, but when appellant took the stand and admitted he did the killing, and Mrs. Cornett and others testified he admitted to them he had shot the deceased, it was no longer a case depending wholly upon circumstantial evidence, and such criticism of the charge is without merit Branch’s Crim. Daw, § 203, and cases there cited.

There are several grounds in the motion complaining of the admissibility of certain -testimony; but as no bills of exception were reserved, at least none being in the record, these questions are not presented in a way we can review them.

There are several complaints in the motion for new trial in regard to the alleged remarks of the district attorney; but, as the fact that he made such remarks is not verified by a bill of exception, we are not authorized to review these matters. The only instance where a bill is reserved is the one that says, “The district attorney, in his closing argument, argued that the letter written by Paschal Williamson to Bertha Dawson was not genuine but was fixed up by defendant,” to which argument defendant objected, because there was no testimony that the letter was not genuine. Perhaps this deduction was drawn by the district attorney from the fact that appellant' alone testified in regard to the letter, and the person to whom it was addressed and who' is alleged to have received it, although in attendance on court, was not placed on the stand to prove that she did receive such a letter. Anyway, as appellant requested no special charge in regard to this matter, it would not be such error as to call for a reversal of the ease.

The judgment is affirmed.


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

text:
    Ex parte MARSHALL.
    (Court of Criminal Appeals of Texas.
    Nov. 19, 1913.)
    1. Jury (§ 24)—Trial by Jury—Verdict— Assessment or Punishment.
    The constitutional provision entitling accused to trial by jury does not preclude the Legislature from providing that the jury shall only pass on the question of guilt or innocence and that the punishment shall be assessed by the court.
    [Ed. Note.—For other eases, see Jury, Cent. Dig. § 143; Dec. Dig. § 24.)
    2. Criminal Law (§ 1206)—Indeterminate Sentence Law — Validity — IndeeiniteNESS.
    Indeterminate sentence law (Acts 33d Leg. c. 132), providing that, instead of pronouncing a definite term of imprisonment after finding or verdict of guilty, the court trying the case shall pronounce an indeterminate sentence of imprisonment in the penitentiary for a term, stating in such sentence, the minimum and maximum limits thereof, fixing as the minimum time for such imprisonment the time now or hereafter prescribed by law as the minimum time of imprisonment for the punishment of such offense, and as the maximum time the maximum time now or hereafter prescribed by law as a penalty for such offense. Held, that such act necessarily applied to offenses, the minimum punishment for which in many instances was a mere fine, and hence- the act was void, witbin Pen. Code 1911, art. 6, providing, that whenever it appears that a provision is so indefinitely framed or of such doubtful construction that it cannot be understood,' either from, the language in which it is expressed or. from some other written law of the state, it shall be regarded ab wholly inoperative.
    [Ed. Note. — For other cases, 'see Criminal-Law, Cent. Dig. §§ 3271-3277, ■ 3279, 13280; Dec. -Dig. § 1206.) , • „-.-!
    .Prendergast, P. J., dissenting in part. .
    Appeal from District Court, Grayson County ; W. M. Peek, Judge.
    Habeas corpus on petition of Raridell Marshall.
    Remanded.1
    Spearman Webb and Hamp P. Abney, both of Sherman, for appellant. C. E. Lane,,Asst. Atfy. Gen., for the State. . ,

      For other oases 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 Dee. Dig..& Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, J.

The statement of facts filed in this cause shows that relator was indicted by the grand jury of Grayson county on August 9, 1913, charged with a violation of article 597 of the Penal Code. A capias was issued by the clerk of the district court on the same day, and appellant was arrested and placed in jail. The validity of this indictment,. or the law under which it is drawn, is not questioned in these proceedings. So it may be said that he was legally arrested and confined .in jail under a valid indictment. Thereafter, on the 18th day of August, the case went to trial, and the jury returned the following verdict: “We, the jury, find the defendant guilty as charged in the indictment.” No term of imprisonment or punishment being assessed or fixed by the jury. On the 13th day of September, 1913, the judge of the district court pronounced sentence on defendant and ordered him incarcerated in the penitentiary for a term not less than one nor more than three years. Relator contends that the verdict and sentence are null and void, and that the laws of this state require that the jury shall assess the punishment to be undergone as well as pass on his guilt or innocence. This brings in review chapter 132 of the acts of the Thirty-Third Legislature, known as the indeterminate sentence law. We will here say that we áre passing on the act passed at the regular session of the Thirty-Third Legislature and not the one passed at the special session, and nothing we shall say shall be considered as passing or in any way affecting the validity of the act passed at the special session of the Legislature.

Article 770 of the Code of Criminal Procedure provides that the jury, in their verdict, must find that the defendant is either guilty or not guilty, and in addition thereto they shall assess the punishment in all1 cases where the saíne is. not absolutely fixed • by law to some particular penalty.' This is the law of this state, unless this provision of the Code, in so far as felony cases are concerned, was repealed1 by1 implication by the provisions-of chapter 132 of the regular session .of ihe Thirty-Third Legislature, In this latter act, in section i, it is provided that when a,-person is on trial.for any felony-, except such as are punishable by death, the jury trying said cause shall ascertain whether or not -said person is guilty of the offense charged,-and, if -the death penalty is not assessed, they shall not assess .the penalty, and the ¡provisions relating to indeterminate sentences shall apply, and in pronouncing sentence on such’ person the. trial judge shall sentence him to confinement in the. penitentiary for a minimum and maximum period; the minimum period being the- least number of years affixed by law as punishment for said, offense, and the maximum period the maximum" term fixed bylaw.

It is .manifest that relator was tried under' the ,provisions of this lawj and "if the law is valid then the procéedings are regular; if the law, for. any reason, is void, then relator' has not had a legal trial and .the proceedings had on the trial are void. The law is assailed on many grounds," but we do not deem it necessary to discuss fill of them. One is that the Constitution of this state requires that the jury shall assess the punishment. In this view the writer does not concur and does not think the law void for this reason. The right' of trial by jury was a right guaranteed. to our English ancestors and brought with .them to-this country, arid,1 .when 1 we were declared a free arid independent people, the right was incorporated in our Constitution, and without a change in the Constitution this right cannot be taken away nor ¿bridged by legislative act. But we do not think the fixing of the penalty by a jury is either implied or guaranteed by the Constitution. It was not so considered by .our English ancestors, for, when the right to be ‘tried by a jury was accorded to them, the jury was only called on and permitted to try only the guilt or. innocence of the accused, and the judge assessed the penalty. This was so during our colonial days, and when this right to be tried by jury was placed in the federal Constitution, in 1776, down to the present time, it has never been construed to embrace the right to have the jury assess the punish-inent. In our federal1 courts, operating under this -Constitution, to this day, the jury passes simply on the guilt or innocence of the accused,1 and, if found guilty, the judge assesses the penalty, and this is the rule in many states of this1 Union, enjoying a Constitution worded, in this respect, the same as is our Constitution. Therefore we are, of the opinion that our Constitution, in guaranteeing a trial by jury, does not embrace the right to have the jury assess the penalty. as, well as pass on'the guilt or innocence of one accused of crime. But, if article 770 was not repealed by implication as1 to felony1 trials by the aforesaid indeterminate sentence law, the accused has a statutory right to have the penalty to be undergone fixed by the jury In their verdict, and this right courts cannot deny him.

But there is a ground which we think renders the indeterminate sentence law (chapter 132) wholly void. Article 6 of the Penal Code provides: “Whenever it appears that a provision of the penal law is so indefinitely framed or of such doubtful construction that it cannot be understood, either from the language in which it is expressed, or from some other written law of the state, such penal law shall be regarded as wholly inoperative.” This is an emphatic rule of construction provided by law for our government. As herein-before stated, section 1 of chapter 132 provides: “Instead of pronouncing upon said person a definite time of imprisonment for a fixed term, after such finding or verdict, the court trying said cause shall pronounce upon such person an indeterminate sentence of imprisonment in the penitentiary for a term, stating in such sentence the minimum and maximum limits thereof, fixing as the minimum time for such imprisonment the time now or hereafter prescribed by law as the minimum time of imprisonment for the punishment of such offense, and as the maximum time, the maximum time now or hereafter prescribed by law as a penalty for such offense.”

When we turn to the Penal Code or written law of this state, we find that the punishment fixed for various felonies includes as the minimum penalty merely pecuniary fines and as the maximum penalty a term of years in the penitentiary. Eor instance: Article 1228 of the Penal Code provides that, if any person shall intentionally break and cut any telegraph and telephone line, he shall be punished by confinement in the penitentiary not less .than two nor more than five years or by fine not less than $100 nor more than $2,000. Under the indeterminate sentence law, if a man should be found guilty of this offense by a jury, what punishment would the judge pronounce against him? The law says he shall affix as the minimum the minimum punishment fixed by law and as the maximum punishment the maximum fixed by law. So the sentence would be, if any pronounced, that the defendant be punished by a fine of not less than $100 nor punished more than by confinement in the penitentiary for five years. Many laws of a similar nature might be cited, another being that, if any officer of a corporation shall consent to a contribution of money by the corporation for the purpose of aiding or defeating the election of any candidate for office, he shall be punished by a fine of not less than $500 nor more than $1,000, or by imprisonment in the penitentiary for not less than two years nor more than five years, or by both such fine and imprisonment.

After a jury had adjudged a person guilty of this offense, how could a trial judge apply the provisions of' the indeterminate sentence | law; and, if he sentenced him to the mini-mum sum of a fine of $500 and a maximum punishment of five years in the penitentiary, would the officers of the penitentiary know whether or not to convey such person to the penitentiary, and, if it should be held that he should be so consigned, when would he have served the minimum punishment fixed by law and be entitled to a parole under the provisions of section 2 of said act? If he paid the $500 ifi cash without serving a day in jail or an hour in the penitentiary, could the Board of Pardons parole him? Taking all the provisions of our Penal Code, it certainly appears that the provisions of this indeterminate sentence law are so indefinite that no construction can be given to them that render an enforcement of that law possible. The language used in the indeterminate sentence law, when considered in connection with a large number of the penal laws of this state, is of such doubtful meaning that one cannot understand what punishment is to be meted out to persons found guilty of the offenses cited above and similar offenses. However, it is insisted that the indeterminate sentence law was not intended to apply to felonies of that class. We know of no rule of construction that would authorize us to so hold. The act by its terms applies to all felonies, and we cannot see how we would be authorized to hold that it is valid and applies to certain felonies but does not apply to the other felonies. If the indeterminate sentence law is valid, it certainly repeals the law requiring the jury to assess the penalty in felony cases; and if so there would be no law authorizing them to fix the punishment where the penalty might be imprisonment in the penitentiary or by fine only, and if imprisonment in the penitentiary is assessed, this shall be a fixed term of imprisonment, while in all other felonies an indeterminate sentence shall be assessed.

Other grounds are assigned why it is claimed the law is void, but we deem it unnecessary to discuss them, as we are of the opinion that it is so indefinitely framed, and of such doubtful construction, that it is impossible to ascertain its meaning, the law is inoperative, and chapter 132 of the acts of the Thirty-Third Legislature void; and, so holding it necessarily follows that article 770 of the Code of Criminal Procedure was not repealed in its application to felony convictions, and appellant was entitled to have the jury assess the punishment as well as pass on his guilt or innocence, and the judgment and sentence based on the verdict fixing no penalty are wholly void. Did we deem it necessary we would discuss the other grounds upon which it is claimed the law is void, but, as we have so held on this proposition, it would be a useless consumption of time.

However, appellant was arrested and incarcerated in jail on a valid indictment which is still pending against him, and he is re-mantled to the custody of the sheriff of Gray-son county,to be held by him to await legal trial under said indictment.

Relator remanded.

PRENDERGAST, P. J.

I concur in that part of Judge HARPER’S opinion holding that the Legislature can by law provide that the jury can pass only on the guilt of an accused and not fix the punishment, and, when the jury by their verdict find an accused guilty, the judge alone can fix the punishment. I have found much difficulty in arriving at a conclusion on the other question ; that is, whether the provisions of chapter 132, approved April 3, 1913, p. 262, are so indefinite as to render the whole act void. After giving the question much thought and investigation, I think the act is not void; that taking all its provisions and construing them together, which must be done, the Legislature did not intend to prohibit the jury from fixing the punishment of such felonies as provide for a fine only or, in the alternative, a fine or a term in the penitentiary, but that the intent of the Legislature was that, as to such offenses, the jury by their verdict should assess the punishment, and that the judge in that class of felonies should not alone fix the penalty. I do not care to discuss the question at all.

DAVIDSON, J.

I concúr in result reached by Judge HARPER that the law is void. It it unnecessary, as I view the matter decided, to express an opinion on other phases of the act.


text:
    COLLINS v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 19, 1913.
    Rehearing Denied Dec. 10, 1913.)
    Criminal Law (§ 1102) — Appeal — Statement of Facts — Time of Filing.
    A statement of facts not filed in the county court until more than 20 days after adjournment will be stricken under the statute on motion.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 1102.]
    Appeal from El Paso County Court; Albert S. Eylar, Judge.
    Ira W. Collins was convicted of unlawfully practicing medicine without a license, and appeals.
    Affirmed.
    Ooldwell & Sweeney, of El Paso, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, P. J.

Upon proper complaint and information charging appellant with unlawfully practicing medicine without having and recording his license therefor, etc., appellant was convicted, and his punishment fixed at a fine of $50 and one day in jail.

The Assistant Attorney General moves to strike out what purports to be a statement of facts in this ease, because not filed in the court below until more than 20 days after the adjournment of court. Under the many and uniform decisions of this court and the statute, the motion is sustained, and said statement struck out Durham v. State, 155 S. W. 222, and cases cited. In the absence of a statement of facts, no question is raised that we can consider.

The judgment is therefore affirmed.


text:
    Ex parte PRESTON.
    (Court of Criminal Appeals of Texas.
    Nov. 19, 1913.)
    1. Oeeicers (§ 110*) — Peace Officers — Duty.
    It is the purpose of the law that peace officers especially shall do everything necessary to prevent, suppress, and punish crime.
    '[Ed. Note. — For other cases, see Officers, Cent. Dig. §§ 176-179, 182-184; Dec. Dig. § 110.*]
    2. States (§ 66*) — “State Officer.”
    In a popular sense a “state officer” is one whose jurisdiction is co-extensive with the state,"while in a more enlarged sense a “state officer” is one who receives his authority under the laws of the state.
    [Ed. Note. — For other cases, see States, Cent. Dig. § 68; Dec. Dig. § 66.*
    For other definitions, see Words and Phrases, vol. 7, pp. 6635-6638; vol. 8, p. 7804.]
    3. Municipal Corporations (§ ISO*) — Officers — Policeman.
    ■A policeman of a city is a public officer holding his office as a trust from the state, and not as a matter of contract between himself and the city; the word applying equally to every member of the police force.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 449-457, 466, 482; Dec. Dig. § 180.*]
    4. False Personation (§ 2*) — What Constitutes — Executive Officer.
    Code Cr. Proc. 1911, arts. 43, 44, respectively, declare that policemen of an incorporated municipality are peace officers, and that it shall be the duty of every peace officer to preserve peace, while Pen. Code 1911, arts. 506, 561, 611, require peace officers, including policemen, to aid in the enforcement of the law against disorderly houses, gambling, and the unlawful sale of intoxicants, and article 349, defining the term “officer,” states, that it includes any peace officer, marshal, or policeman of a city or town. Held that, while an_ executive officer is one whose duties are mainly to cause the laws to be executed, a policeman is an executive officer within the purview of Pen. Code 1911, art. 424, providing that any person who shall falsely assume or pretend to be a judicial or executive officer of the state shall be punished, for a policeman is a public officer of the state expressly charged by the statutes with enforcing a large body of the criminal law.
    [Ed. Note. — For other cases, see False Per-sonation, Cent. Dig. § 2; Dee. Dig. § 2.*]
    Appeal from Harris County Court at Law; C. C. Wren, Judge.
    Application by Will Preston for a writ of habeas corpus. From a judgment remanding relator, he appeals.
    Affirmed.

      R. H. Holland, of Houston, for appellant. O, E. Lane, Asst. Atty. Gen., for the. State.
   PRENDERGAST, P. J.

The sheriff of Harris county holds the relator in the county jail by virtue of a proper capias. He sued out an- original habeas corpus before the county judge, contending that the complaint and information on which he was arrested and held charged no offense under the laws of Texas, and that he was entitled to his liberty. The county judge who granted the writ heard the case, and, remanded the relator, from which he has appealed to this court.

The information against him alleges that on October 4, 1913, he did unlawfully, willfully, and fraudulently assume and pretend to be a police officer of the city of Houston, Harris county, Tex. Then gives the particulars thereof, and, further, that he was not such officer, as he then and there well knew.

This prosecution was had under article 424, P. C., which is: “Any person who shall falsely assume or pretend to be a judicial or executive officer of this state, or a justice of the peace, sheriff, deputy sheriff, constable or any other judicial or ministerial officer of any county in the state, and shall take upon himself to act as such, shall be punished by imprisonment in the county jail for a term not exceeding six months, or by fine not exceeding five hundred dollars.”

Appellant contends that this statute does not include any city officer, but means only officers of the state and county, which are made so by our Constitution. This is the only question raised.

Our statute (C. C. P. art. 43) expressly enacts that policemen of an incorporated town or city are peace officers.

Article 44 is: “It is the duty of every peace officer to preserve the peace within his jurisdiction. To effect this purpose, he shall use all lawful means. He shall, in every case where he is authorized by the provisions of this Code, interfere without warrant to prevent or suppress crime. He shall execute all lawful process issued to him by any magistrate or court. He shall give notice to some magistrate of all offenses committed within his jurisdiction, where he has good reason to believe there has been a violation of the penal law. He shall arrest offenders without warrant in every case where he is authorized by law, in order that they may be taken before the proper magistrate or court and be brought to punishment.”

Chapter 4, tit. 10, art. 498 et seq., P. C., makes the keeping of bawdyhouses, disorderly houses, and houses of assignation offenses, and prescribe punishment therefor.

Article 506 of that chapter requires all peace officers, naming them, including mayors, marshals, chiefs of police, and deputies and assistants, and policemen, of towns and cities to discover and report to the proper legal authorities, and by all lawful means to aid in the, enforcement of .the law for violations of the articles of that chapter, and requires the district judges specially to charge grand juries thereabout, and makes it the duty of the grand juries at every term of the district court to call before them each and all of said .officers, and examine them under, oath touching their knowledge and information of violations thereof and as to their diligence in their enforcement. Articles 548 to 563 inclusive, P. 0., denounce gaming and the keeping of premises therefor, etc.

Article 564 specially enacts: “Whenever it shall come to the knowledge of any * * * police officer or other peace officer, by affidavit of a reputable citizen, or otherwise, that any of the provisions of this ‘law are being violated, it shall be the duty of such officer to immediately avail himself of all lawful means to suppress such violation.”

Article 611, P. C., makes it an offense to sell intoxicating liquors without license, and the succeeding articles make many other offenses regarding the unlawful sale, etc., of intoxicating liquors.

Then article 631 in the same chapter requires that any peace officer, having knowledge of the violation of this chapter, shall report the same to the county attorney, who shall forthwith prosecute any person or persons violating this law.

Chapter 4, tit. 8, ‘art. 320 et seq,, P. C., relating to offenses against public justice, and relating to the arrest and custody of prisoners, makes many acts in connection therewith offenses — some misdemeanors, others felonies.

Then article 349 defines an officer, and states that it means any peace officer, marshal, or policeman of a city or town.

Article 261, C. C. P., authorizes towns and cities to establish rules authorizing the arrest, without warrant, of persons found in suspicious places and under circumstances which reasonably show that such persons have been guilty of some felony or breach of the peace, or threaten or are about to commit some offenses against the laws.

And, as said by this court in Minter v. State, 159 S. W. 292: “The whole theory and purpose of our laws are that the peace officers especially shall do everything and all things necessary or proper to prevent, suppress, and punish crime.”

23 A. & E. Ency. of Law (2d Ed.) p. 327, says: “In a popular sense a state officer is one whose jurisdiction is coextensive with the state. In a more enlarged sense a state officer is one who receives his authority under the laws of the state, and performs some of the governmental functions of the state.”

An executive officer is one whose duties are mainly to cause the laws to be executed. Bouvier’s Law Dictionary; Black’s Law Dictionary ; 23 A. & E. Ency. of • Law, p.- 326. 28 Cyc. 497, says: “A policeman of a city is a public officer holding his office as a trust from the state, and not as a matter of contract between himself and the city.” Again, 31 Cyc. 901, defining “policeman,” says: “As a generic term, a word which may equally apply to any member of the police force, be his rank and station what it may.” Throop on Public Officers, in section 10, says that a policeman and a police officer are public officers. Meehem on Public Officers holds that the police officers of a city are public officers, and says: “The power intrusted to the corporation in such cases is intrusted to it as one of the political divisions of the state, and it is conferred, not for the benefit of the municipality, but as a means of the exercise of the sovereign power for the benefit of all the citizens. The ofiicers who exercise this power are not the agents or servants of the municipality, but are public officers, agents or servants of the public at large, and the corporation is not responsible for their acts or omissions, nor for the acts or omissions of the subordinates appointed by them.” 1 Dillon on Municipal Corporations (5th Ed.) § 390, discussing police officers and their power to make arrests, says: “The office of a police officer is not known to the common law; it is created by statute, and such an officer has and can exercise only such powers as he is authorized to do by the Legislature, expressly or derivatively. He is an officer of the state rather than of the municipality in which he exercises his office.” In Johnson v. Hanscom, 90 Tex. 327, 38 S. W. 763, Chief Justice Gaines for our Supreme Court, in discussing the character of an officer of the city of Galveston, says: “While acting as justice of the peace, the recorder of the city is, to all intents and purposes, a justice of the peace, and, since the criminal jurisdiction of a justice’s court extends only to prosecutions for violations of certain penal laws of the state, he is as to the functions of that office a state officer. Writs and processes issued by him are state writs and state processes, and hence they must run in the name of the state of Texas.” In City of Galveston v. Hemmis, 72 Tex. 563, 11 S. W. 31, 13 Am. St. Rep. 828, our Supreme Court again says: “The statute of this state makes policemen of incorporated cities and towns public officers, that is, peace officers, and clothes them with the powers and duties of other peace officers.” See, also, Rusher v. City of Dallas, 83 Tex. 153, 18 S. W. 333; Harris County v. Stewart, 91 Tex. 133, 41 S. W. 650. In Sanner v. State, 2 Tex. Cr. App. 458, this court held that the word “officer” in article 1022, P. C., making it an aggravated assault to commit an assault and battery upon an officer, included and meant a policeman of any city or town.

From these authorities we are clearly of the opinion that an “executive officer of this state,” as used in said article 424, P. C., quoted above, includes any police officer or policeman in any city or town of this state, and that by such description the Legislature did not intend to restrict such an executive officer to those specially enumerated as constituting the executive department of this state by section 1, article 4, of our Constitution, as contended by the relator. The language of this statute is significant. It is: “Any person who shall falsely assume or pretend to be a judicial or executive officer of this state”— not a judicial or executive state officer. We are further clearly of the opinion that the information in this case charged an offense against the laws of the state under said article 424, P. C., and that the county judge was correct in so holding, and remanding relator to the custody of the sheriff.

His judgment is therefore affirmed, and we again remand him to the custody of the sheriff.