author: CONNER, C. 3.

text:
    CITY OF COMANCHE v. HOFF & HARRIS.
    (No. 8001.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 20, 1914.)
    1. Pleading (§ IS) — Supplemental Petition— Soefkjienct.
    A contract, which bound plaintiffs to furnish the defendant city with water, required the city to compel water users to install meters and to maintain all meters in repair. It further obligated plaintiffs to maintain the water in the reservoir at a certain level, unavoidable accident excepted, under pain of daily penalties. In an action on the contract the city set up plaintiff’s failure to maintain the water at the required level, and plaintiffs by supplemental petition asserted that it was by reason of the city’s failure to require’city ■ water users to install meters and to maintain them in working order. Held, that the supplemental petition was not bad because it failed to name those users of water who had not installed meters or whose meters were not in repair; such information having been obtained from the city’s own books.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 39, 64; Dec. Dig. § 18.]
    2. PLEADING (§ 18) — SUPPLEMENTAL PETITION— Sufficiency.
    Nor was the supplemental petition, which asserted that the failure to maintain the water at the required level was due to unavoidable accident in the breaking down of the pumping engines, had because it did not specifically set forth the nature of the breakdown; plaintiff not being bound to plead evidence.
    [Ed. Note. — Por other cases, see Pleading, Cent. Dig. §§ 39, 64; Dec. Dig. § 18.]
    3. Appeal and Error (§ 197) — Presentation of Grounds of Review in Court Below — Motion for Continuance.
    Though the city because of the indefiniteness of the petition was surprised by the introduction of evidence of the names of those water users who had not installed meters or whose meters were out of repair, it cannot complain on appeal of the reception of such evidence, where it did not withdraw its announcement of ready for trial, so as to obtain time to prepare to rebut the evidence.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 1428-1441; Dec. Dig. § 197.]
    4. Witnesses (§ 398) — Impeachment.
    Where the manager of an oilmill testified that, during part of the time it was claimed that plaintiff failed to maintain the water at the required level, the oilmill had no connection with the water system, evidence that a few years before it was ascertained that the oilmill did have connection with the water system, although there was no meter, was admissible to affect the credibility of the manager and the weight to be given his testimony.
    [Ed. Note. — Por other cases, see Witnesses, Cent. Dig. §§ 1267, 1274, 1276; Dee. Dig. § 398.]
    5. Waters and Water Courses (§ 203)— Pubeic Supply — Installation of Meters.
    The evidence is also admissible to show that the city failed to compel known water users to install meters.
    [Ed. Note. — Por other cases, see Waters and Water Courses, Cent. Dig. §§ 289, 290-299; Dec. Dig. § 203.]
    6. Appeal and Error (§ 1031) — Review— Harmless Error.
    Objections to the charge or refusal of a special charge will be considered harmless where unsupported by the statement of any evidence tending to show probable injury from the rulings.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 4038-4046; Dec. Dig. § 1031.]
    7. New Trial (§ 102) — Newly Discovered Evidence.
    Where a contract for the furnishing of a city with water required the city to compel water users to install meters and keep them in working order, and provided for daily penalties in the case of the plaintiffs’ failure to maintain water in the reservoir to a certain depth, and plaintiffs excused their failure to keep the water at the stipulated depth by showing that the city did not require all users of water to install meters or keep them in repair, the city cannot after an adverse verdict, obtain a new trial for newly diácovered evidence that a large part of the persons shown by its own books to be without meters were in fact supplied with meters, and that they did not waste water because they were not so supplied, for, the information being at all times in the boobs of the city, it should by diligence have discovered such facts before trial or have asked for a postponement to ascertain them.
    [Ed. Note. — Por other cases, see New Trial, Cent. Dig. §§ 207, 210-214; Dec. Dig. § 102.]
    8. New Trial (§ 108) — Newly Discovered Evidence — Weight of Evidence.
    Testimony by the users of water that they did not waste water because they were not supplied with meters being of such an extremely uncertain and inconclusive character, a new trial should not be granted for newly discovered evidence to that effect.
    [Ed. Note. — Por other cases, see New Trial, Cent. Dig. §§ 226, 227; Dec. Dig. § 108.]
    9. Contracts (§ 173) — Construction.
    Where a contract for the furnishing of a city with water required the city to compel all users of water to install water meters, and to keep the meters in repair and at the same time imposed upon plaintiffs penalties in case of their failure to maintain a depth of four feet of water in the reservoir, the two duties are interdependent, and the city, having failed to compel water users to install meters and to keep meters installed in repair, cannot insist on the penalties because the water at times was slightly below four feet.
    [Ed. Note. — Por other cases, see Contracts, Cent. Dig. §§ 762-764; Dec. Dig. § 173.]
    Appeal from District Court, Comanche County; J. H. Arnold, Judge.
    Action by Hoff & Harris against the City of Comanche. Prom a judgment for plaintiff, defendant' appeals.
    Affirmed.
    Callaway & Callaway, of Comanche, for appellant. Goodson & Goodson, of Comanche, for appellee.

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

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

   CONNER, C. 3.

On the 31st day of January, 1912, the city of Comanche and Hoff & Harris entered into a contract, by virtue of which, among other things, Hoff & Harris agreed to furnish to the city water for the period of five years at specified rates per month which the city in turn agreed to pay. Paragraphs 6 and 6 of the contract bound the city to maintain its then charge for the use of its water, and to “compel all who use water to install meters and to keep all meters in repair.” Paragraph 8 of the contract bound Hoff & Harris to maintain water in the city reservoir “to a depth of at least four feet at all times,” and in event they should fail to do so, “to forfeit to the said city” the sum of $5 for the first day and $10 for edch succeeding day, or fraction thereof, that Hoff & Harris should fail to so maintain the supply of water. “Unavoidable accident” was excepted, and it was provided that the forfeitures might be deducted by the city from the payments required of it under the contract. This suit was instituted by Hoff & Harris to recover a balance of $744.60 alleged to be due under the contract. The city pleaded, among other things, that for a number of periods specified the plaintiffs had failed to maintain water in its reservoir as they had agreed to do, and that by reason thereof the city had declared and retained the forfeitures as specified in the contract, which in all amounted to the sum sued for. To this plea the plaintiffs replied, in substance, admitting the failures set out by the city, but alleging that at all times water sufficient for the use of the inhabitants of the city had been supplied, and that the failures complained of were occasioned by unavoidable accident and as a consequence of a failure of the city to compel a large number of its water users to install meters and to keep the meters in use in repair. A trial before a jury resulted in' a verdict for the plaintiffs for $684.50, and the city has appealed.

Numerous assignments of error are presented to which there are numerous objections, but we have concluded to dispose of the case in a general way without undertaking to specifically dispose of each assignment, proposition, and exception thereto.

We find no reversible error in the court’s action in overruling appellant’s special exception to appellees’ supplemental petition, charging that the forfeitures claimed were brought about principally because of the city’s failure to require water users to install meters and to keep meters that they did install in running order. The exception was based mainly upon the failure of the plaintiffs to name the water users who had not installed meters and to name those maintaining meters out of repair. The principal evidence on the part of the plaintiffs in support of these allegations was a transcript from the records of the city’s water department, from which it appeared that some 6S named water users had not been compelled to install meters, and that some 105 other customers either did not have meters, or that their meters were not in running order. If the records kept by the city gave the very information sought by the special exception, we do not see how it can be said that the city suffered any surprise by reason of the action of the court in overruling the exception, particularly in view of the fa.ct that appellant in no way disputes the correctness of these records. Nor do we sustain the exception to the supplemental petition on the ground that the facts showing the “unavoidable accident” pleaded by the plaintiffs were not specifically set forth. The supplemental petition alleged that for a part of the period which was specified the plaintiffs had been unable to fully maintain the required depth of water in the reservoir because of unavoidable accident in the breaking down of the pumping engine. Plaintiffs were not bound to plead their evidence, and nothing in the evidence introduced on the trial is pointed out that tends to show that the breakdown in the engine was due to the plaintiffs’ negligence, so that we see no material cause of complaint.

A number of witnesses testified that several concerns, such as the Comanche Oilmill, the • Cotton Compress, Burke-Simmons Company, and others, had connection with the water system of the city, but had no water meters installed; also that there were a number of people residing in the city whose meters were out of repair, during the period covered by the forfeitures claimed. To all of this testimony objection was made because the names of such concerns and persons had not been stated in the plaintiffs’ petition. But, as before shown, the failure to so' name such persons could scarcely be said to have operated as a surprise to the city, or if the failure in fact operated as any material surprise, we think the city should have withdrawn its announcement of ready for trial in order to rebut the testimony, if it could do so. If there is anything in the evidence tending to contradict the testimony so offered, it has not been pointed out, and we think the proof offered was plainly in support of the defense presented in the plaintiffs’ supplemental petition.

Nor do we think there was reversible error in permitting the witness Switzer to testify that several years previous to the trial he had made an examination and ascertained that the oilmill had connection with the city water system, and that no meter had been installed. As explained by the trial court, the testimony referred to was given in rebuttal and as tending to lessen the force of one of appellant’s witnesses, who had previously testified that he was the manager of the oilmill during part of the time it was claimed by the city that plaintiffs had defaulted in their contract to keep water four feet deep in the reservoir, and that the oilmill had no connection with the water system. The witness Switzer was thereupon permitted to testify that he, together with some of the city officers, had a few years before investigated a like claim by the oilmill that it had no connection with the water system, and then found, contrary to the then contention of Coleman, the superintendent, that the oilmill did have such connection. The court explains that Switzer’s testimony was admitted “for the jury to 'consider, if they so desired, as a circumstance bearing on the question of the testimony of Coleman (the superintendent); that at the time in question there was no such connection with the oilmill, or whether such connection, if there was one, could not possibly have escaped his attention in his superintendence the time in question as well as it did the first time." As explained by the court, the testimony objected to was relevant to the issue of the witness Coleman’s credibility and the weight to be given to his testimony, as well also as tending to show that the city had failed to compel known water users to have meters.

The objection to the court’s charge defining “unavoidable accident,” and to its action in refusing to give a special charge containing what is claimed to be a better definition, is unsupported by the statement of any evidence tending to show any probable injury from the court’s ruling. In other words, in the statement under these assignments, no evidence is pointed out showing that the variation in definition could have been materially prejudicial.

It is also earnestly Insisted that the court should have granted a new trial on the ground of newly discovered testimony. The alleged newly discovered testimony, as stated in the assignment, is that the city had “found out by investigation from a great majority of the said 68 persons named in September, 1912, and the 105 persons named in October, 1912, that none of the said parties wasted or withdrew any water whatsoever from the said reservoir more than they would have drawn if they had been on the meters, or if the meters they were on had been in perfect running order, and defendant believes and, so believing, states here as a fact that each and all of the said persons who were not on meters, or whose meters were out of repair, will swear that they did not use or withdraw any more water than they would have used or withdrawn if they had been on meters which were in perfect running order. This defendant has further discovered the 68 persons and the 105 persons above alluded to and named in the said transcript offered in evidence are in reality made up and composed of 112 persons, and at least one-third of them either never were water consumers at all during said time, or were on meters that were in perfect running order, and will so testify upon another trial, and each and all persons who did not have meters or whose meters were out of repair will testify that no water was wasted or misused by them because of that fact.” As before stated, the names of the parties who were without meters or whose meters were out of repair were principally obtained from the boohs of the defendant, and the city could not have been surprised in this testimony offered by appellees, notwithstanding a failure in the petition to specifically name them, or if surprised and if there was any reasonable probability of contradicting the record so offered by appellees, or of lessening its force and effect, appellant should have so suggested to the court and secured time within which to obtain the alleged newly discovered evidence. This was not done, and appellant could not taire its chances, as it did, and thereafter complain. Moreover, the newly discovered testimony, as stated, is of the mos.t uncertain and inconclusive character. In the very nature of the subject the testimony of a witness to the ■effect that he had or had not used more water in the absence of a meter than he would had a meter been installed is but a conclusion leading to no certain result, and, in the view that we have of the case, is moreover immaterial, in that a determination of that particular issue was not necessary to thé plaintiffs’ recovery.

The city of Comanche is not a large one, and it seems undisputed that a very material number of its water users were permitted by the city to use water without the installation of meters and to use water upon meters that were out of repair. There is no contention made that, at any time during the period o'f forfeiture claimed, the city or its inhabitants in any way suffered actual injury or discomfort because of a deficiency in the quantity of water supplied. The uncontradicted evidence further tends to show that for some of the time the failure urged amounted to but a few inches below the specified depth, so that the case is stripped of all contention except that of appellant that it should have the penalty prescribed by the contract because of the failures shown. While we have been unable to find any authority directly in point, in our opinion appellees were entitled to a judgment under the undisputed evidence. The stipulations in the contract that the city would compel “all of the water users” to instal water meters, and binding the city to keep meters that had been installed in repair, and that clause of the contract requiring the maintenance of four feet of water in the reservoir and imposing penalties, are closely correlated. ‘ The agreement to require and repair meters could have been, as it seems to us, inserted in the contract but as an assurance to appellees that by the city’s performance of these stipulations they would thereby be enabled to perform their agreement to keep four feet of water in the reservoir and thereby avoid the penalties specified. The stipulations of the city referred to in their nature constituted a material inducement to and a material consideration for appellees’ promise to maintain the specified quantity of water, and it can, by no means, be said that appellees would have consented to the stipulations on their part in the absence of the responsive agreement on the part of the city to require and repair-meters. It is apparent that proof that any one or more water users without meters or with defective meters used more water without than with meters in good order would be very difficult, if not impossible. We may safely assume that as long as self-interest is of controlling effect patrons of a water system such as that under consideration will be less careful in the use of water for which they do not account by measure, and the contractors had the right to provide for a rule of action on the part of the city that would at once forcibly operate to prevent waste of water and to avoid a necessity of resort to the unsatisfactory and uncertain proof mentioned. This they did, and its undisputed violation by the city destroyed a very material assurance upon the faith of which it is natural to conclude appellees made the specific agreement to maintain four feet of water in the city reservoir. This being true, regardless of testimony of a want of waste by nonmetered patrons, the city is in no attitude to insist on the clause of the contract relating to penalties, in view of its undisputed material breach of the reciprocal obligation intended as a guard against the penalties now urged in behalf of appellant.

We conclude that all assignments of error should be overruled and the judgment affirmed.

SPEER, J., not sitting.


source: Caselaw Access Project

author: RICE, J.

license: Public Domain

text:
    SCOTT et al. v. FIELDS.
    (No. 4357.)
    (Court of Civil Appeals of Texas. Austin.
    Oct. 20, 1914.)
    Appeal and Error (§ 454) — Jurisdiction— Withdrawal from Appeal Bond.
    Where jurisdiction has been vested in the appellate court by the filing of an appeal bond, pursuant to Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 20S4, 2099, which bond is signed by two defendants sued as partners, and against whom a joint and several judgment has been obtained, one defendant cannot thereafter, by erasing his name from the bond, defeat such jurisdiction.
    [Ed. Note. — Eor other eases, see Appeal and Error, Cent. Dig. § 2215; Dec. Dig. § 454.]
    Appeal from Palls County Court; W. E. Hunnicutt, Judge.
    Action by J. P. Fields against A. M. Scott and another. From judgment for plaintiff, defendants appealed. Plaintiff moves to affirm on certificate as against the defendant named, on the ground that he has abandoned his appeal.
    Motion overruled.
    Tom Connally, of Marlin, for the motion.

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

   RICE, J.

This suit was brought by appel-lee against Rea & Scott, as partners, and judgment recovered by him against them jointly and severally for the sum of $490.75, interest and costs, from which judgment said parties Rea & Scott duly perfected their appeal to this court by the execution and filing, after adjournment, on April 9, 1914, in the county court of said county their supersedeas bond, which was on said day duly approved. Thereafter, as appears from the record, one of the attorneys for said parties, on being allowed to inspect the bond, erased the name of Scott therefrom, and the transcript of the record was, within the time required by law, filed in this court by appellant Rea, without the name of the said Scott appearing on said bond.

Appellee has filed his motion in this court to affirm on certificate as against Scott, on the ground that he had abandoned his appeal. This motion, in our judgment, is not tenable, because neither Scott nor his counsel, after the appeal was perfected, could by such erasure defeat the jurisdiction of this court. An appeal is perfected by giving notice of appeal, and filing an appeal bond, as required by law. See 2 Vernon’s Sayles’ Rev. Stat. arts. 2084 and 2099. When this has been done, the trial court, eo instanti, loses, and the appellate court acquires, jurisdiction. See Curtis v. Bernstein & Co., 2 Willson Civ. Cas. Ct. App. § 672; Pfeuffer v. Wilderman, 1 Willson Civ. Cas. Ct. App. §§ 187, 188; Gordon v. Rhodes, 104 S. W. 786; McLane v. Kirby & Smith, 54 Tex. Civ. App. 113,116 S. W. 118; G., C. & S. F. Ry. Co. v. Ft. W. & N. O. Ry. Co., 08 Tex. 103, 2 S. W. 199, 3 S. W. 504; Churchill v. Martin, 65 Tex. 367; Blum v. Wettermarls, 58 Tex. 125.

When the appeal was perfected by appellants, as was done in the instant case, appel-lee acquired an interest in said bond, and, among other things, the right to send the transcript up and have the case affirmed on certificate, in the event of appellant’s failure to file transcript within the time required by law; and this right certainly cannot be defeated by said appellant’s unauthorized erasure of his name therefrom. The filing of the transcript by appellant Rea was, under the circumstances, the filing for both appellants, and inured to their joint benefit. The effort, therefore, on the part of Scott to abandon the appeal was a nullity, and the bond remained in full force and effect; so that the case is properly before us on appeal as to both parties, and the motion to affirm is therefore refused.

Motion overruled.


author: PRENDERGAST, P. J.

text:
    WOMACK v. STATE.
    (No. 3234.)
    (Court of Criminal Appeals of Texas.
    Oct. 14, 1914.)
    1. Cbiminal Law (§ 1090) — Appeal—Denial oe Continuance — Bill oe Exceptions.
    The denial of a continuance cannot be considered by the appellate court when not raised or presented by a bill of exceptions.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2S27, 2927, 2928, 2948, 3204; Dec. 'Dig. § 1090.]
    2. Criminal Law (§ 1091) — Appeal—Bill oe Exceptions — Sufficiency.
    A bill of exceptions to the admission of evidence is insufficient where it merely states the grounds of objections, and contains no statement of facts, approved as such, setting out the matters on which the objections were predicated.
    LEd. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.]
    3. Criminal Law (§ 412) — Evidence—Declarations — Admissibility.
    Where a witness in a homicide case testified that defendant stated to him, in response to an inquiry as to where he got the blood on his shirt, that he had killed deceased, and that the witness then gave him another shirt, which he put on at the house, the testimony of M., who was present at the house but had not heard such statement, that defendant stated, in response to her inquiry concerning the blood, that he had something to tell her, but he would not tell her because she was of bad repute, was properly admitted.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 894-917, 919-935; Dec. Dig. § 412.]
    4. Criminal Law (§ 1038) — Appeal—Presentation Below — Failure to Instruct.
    Where accused fails to object to the court’s charge before it is read to the jury, on the ground that it fails to state that a certain witness is an accomplice, and no special charge to that effect is requested before the charge is read, error cannot be predicated on the court’s failure to so instruct.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2646; Dec. Dig. § 1038.]
    5. Criminal Law (§ 1086) — Appeal—Presentation por Review — Instructions.
    Neither a paper objecting to the court’s charge and filed in the record and containing the style and number of the cause, but not signed by any one or showing that it was presented to the trial court, nor special charges, which were copied in the record, followed by the word “refused,” with the trial judge’s signature, were sufficient to present for review the correctness of the charge.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2769, 2770, 2772, 2794; Dec. Dig. § 1086.]
    6. Criminal Law (§ 784) — Circumstantial Evidence — Instructions.
    An instruction on circumstantial evidence should be given only where the evidence is purely circumstantial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1883-1888, 1992, 1960; Dec. Dig, § 784.]
    7. Criminal Law (§ 780) — Evidence op Accomplice — Sufficiency—Instructions.
    Evidence held insufficient to show that one of the state’s most material witnesses was an accomplice so as to require an instruction thereon.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1859-1863; Dec. Dig. § 780.]
    8. Criminal Law (§ 829) — Instructions on Alibi — Sufficiency.
    Where the court so charged on presumption of innocence, reasonable doubt, and burden of proof as to cover the question of alibi, no other charge on the subject of alibi was required.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.]
    9. Criminal Law (§ 1124) — Appeal—Presentation for Review — Denial of New Trial.
    Where accused fails to present by bill of exceptions the question of a juror’s misconduct on which he relied as one ground for a new trial, and does not show by any statement of facts the testimony introduced thereon at the hearing on the motion for new trial, the denial of a new trial will not be reviewed, though accused has filed a statement by the official stenographer, purporting to give such testimony, but not agreed to by the attorneys or approved by the court.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2939, 2946-2948; Dec. Dig. § 1124.]
    Appeal from District Court, Navarro County; H. B. Daviss, Judge.
    Henry Womack was convicted of murder, and appeals.
    Affirmed.
    Jack & Jack, of Corsicana, for appellant. James Kimball, Dist. Atty., of Groesbeck, Hawkins Scarborough, of Corsicana, and C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, P. J.

Appellant was convicted of murder, and Ms punishment assessed at 12 years in the penitentiary.

The evidence is amply sufficient to sustain the conviction.

Appellant complains that the court erred in overruling his motion for a continuance. This is not raised nor presented by a bill of exceptions. The question, therefore, cannot be considered. See some of the cases cited in Branch’s Crim. Law, § 260, subdivision 3.

After the proper heading of the style of the ease, etc., by one of appellant’s bills he shows that the court permitted Mattie Robinson, one of the state’s witnesses, to testify:

“That the defendant told her the evening after the alleged killing and the next evening after the festival at Dick Turner’s, at her house in Cor-sicana, Tex., that he had something to tell her, but he would not tell her because she was common on the town and was of bad repute.”

The balance of the bill is made up of appellant’s objections to the introduction of this testimony, which were mere objections and not statements of facts and not approved as such by the court. This bill is wholly insufficient to authorize this court to consider it. Best v. State, 164 S. W. 997, and authorities there cited. From the bill it is impossible to tell 'whether such testimony was admissible or not. If we could go to the record we would find that it was shown thereby that appellant and others were at said witness’ house the next day after the killing the preceding night; that he had blood on his shirt, and that he told another witness at said house that he had killed the deceased the night before, and how he had killed him, where the body was, and the particulars thereof, and that the blood on him was gotten on him from the dead man at the time he killed Mm; that he applied to this witness for a shirt to put on, and that witness furnished him one of his shirts which he put on at said house. It was at this time that said witness, Mattie Robinson, demanded of appellant an explanation of the presence of the blood on his shirt, and then it was he told her what she testified. So that, even if we could consider the bill, the evidence objected to was admissible.

Appellant next contends that the court should have charged that one of the most material witnesses, Dock Palmer, was an accomplice, and erred in refusing to give his charges on that subject. As to this the record does not show that appellant made any such objection to the court’s charge before it was read to the jury, nor that he requested either of Ms special charges before the charge was read to the jury.

We find in the record a filed paper with the style and number of the cause, which says, “Now comes the defendant and points out his objections to the court’s charge as now submitted to him:” Heading the charge is insufficient, and does not charge the whole law of the case: First, because there is no charge on circumstantial evidence. Second, because it does not charge accomplice’s testimony. The evidence shows that the state’s witness is an accessory or accomplice, and such charge is called for. Third, the fifth paragraph is not sufficient on the law of alibi. This is not signed by any one, and in no way shown to have been presented to the court for its action at any time. There are several special charges also copied in the record, at the bottom of which is, “Refused. H. B. Daviss, District Judge.” There is no bill of exceptions to the refusal of the court to give these charges or any of them, nor does the record in any way show when they were presented to the judge for his action. The state objects to this court considering any of these matters, because they are not properly raised, nor presented. We think the state’s contention is correct. However, if we could consider these questions, no error was committed by the trial judge.

It is only when the evidence is purely and wholly circumstantial that the court is authorized or required to charge on circumstantial evidence. See subdivision 2, section 813 of Judge White’s Ann. O. C. P. In his subdivision 4 of the same section, he says that where, in addition to proof of circumstances, the state has introduced proof of defendant’s admissions, the ease is not one of circumstantial evidence, and the court is not required to charge thereon. Under each of these subdivisions Judge White cites many of the cases. Both propositions are too well settled to make it necessary to collate or cite the other eases. In this case there was strong circumstantial evidence tending to show that appellant did the killing, but, in addition thereto, said witness Palmer testified to a full admission by appellant that he killed the deceased and the details of the crime.

We have carefully read and studied the evidence in this case, and in our opinion none of it shows or tends to show that said Palmer was either an accomplice or an accessory. Appellant himself claims it in his brief on this testimony of the witness, which we copy from his brief:

“I had a conversation with Henry Womack before the killing. He said Isaah Tolbert had pretty good money, and if we could get him out gambling we could get a pretty good stake, and he said,.‘I am going to have it if I have to kill him.’ He asked me if I had ever thought anything about getting Isaah out to gamble with him, and I said ‘No,’ and he said ‘Let’s figure some way to get him out.’ Babe got a pistol out before we left, and Henry called for it, and she gave it to him; that was my gun. I had a conversation on that Sunday with Henry at Robert’s house. Henry said, T take you for a friend; I got him.’ He said, ‘Plere is where I got this blood at; have you got any clothes here?’ and I said, ‘Yes.’ He said, ‘Get me a shirt to put on.’ I give him a shirt, and he put it on. At Mr. Tucker’s Henry said he would run off if it was not' for his family; said, ‘If you tell them, I will kill you.’ I told him I would not tell it. I knew Isaah had money; I heard Mr. Weaver tell Henry he was not putting it in the bank. I had my gun when I borrowed the dollar; I saw .Isaah’s money; I agreed to_ keep this a secret; I told him I would not tell it. Mr. Weaver asked me if I knew where he (Isaah) was; I told him, ‘No.’ Henry asked me if anything had gotten out, and I told him everything was quiet; I did not give it up and tell anything until I was arrested. I was arrested and kept in jail 6 weeks and 4 days. I talked with the officers and told them about what Henry told me. They let me out of jail, and I never have been prosecuted for anything”

—and on the fact that it was shown that when the body of the deceased was first found, said witness, as well as others, was arrested, placed in jail, and complaints made against all of them for the murder. The record also shows that as soon as the facts of the case were investigated, the prosecution against this witness was dismissed, he released from custody, the grand jury investigated the case and refused to indict him. Hargrove v. State, 63 Tex. Cr. R. 143, 140 S. W. 234; Jones v. State, 163 S. W. 76; Minter v. State, 159 S. W. 300; Burge v. State, 167 S. W. 70, and the authorities cited in these cases. See, also, the cases collated in Branch’s Crim. Law, § 319, subd. 5, on page 180, and section 686.

In addition to the court’s charge that appellant was presumed to be innocent, unless his guilt is established by legal evidence beyond a reasonable doubt, and to give him the benefit of such doubt and acquit him if they had such doubt, he also charged that the burden of proof was on the state to show, beyond a reasonable doubt, that appellant was present at the time and place where deceased was killed, if he was killed, and if the jury had a reasonable doubt as to whether he was present at the time and place when and where deceased was killed, if he was, to find him not guilty. • Again, he charged them that before they could convict appellant, they must believe, beyond a reasonable doubt, that he killed deceased, and must further find, beyond a reasonable doubt, that no other person killed him, and if they had a reasonable doubt whether -appellant or some other person killed deceased, to acquit him. In addition to this, the court, in a clear charge, required the jury to believe, beyond a reasonable doubt that appellant killed the deceased under such circumstances as to make him guilty of murder before they could convict him.' This in every way met the question of alibi, and no other charge on that subject was required or would have been proper. Branch’s Grim. Law, § 32.

The only other question necessary to be decided is one ground of appellant’s motion for new trial, claiming.that one of the jurors in the presence of the others gave testimony to thpm which was not introduced on the trial of the case, and while they were deliberating. The record clearly shows that the court heard evidence on this question and after hearing it overruled the motion. We must assume that the court did so in accordance with the evidence heard, and that his action was supported.by the evidence. Appellant does not present the question by bill of exceptions, nor does he show by any statement of facts what the testimony was which the court heard on his motion. There is filed with the court papers a statement by the official stenographer, purporting to give this evidence, but this is in no way agreed to by the attorneys for either side, nor is it in any way acted upon or approved by the court. Hence it cannot be considered for any purpose. It is just as essential that the court shall pass upon and approve such statement of facts as it is that he shall do so as to the statement of facts on the trial of the case.

No error is pointed out which would authorize or justify the court -to reverse the case, and it is therefore affirmed.


author: HARPER, J.

text:
    ANDERSON v. STATE.
    (No. 3216.)
    (Court of Criminal Appeals of Texas.
    Oct. 14, 1914.)
    1. Criminal Law (§§ 419, 420) — Evidence-Hearsay — Sheriff’s Return.
    A sheriff’s return upon a subpoena, which stated that he was informed at the witness’s last place of employment that the witness had left for another state, is not admissible as. a foundation for the admission of the testimony of the witness taken, at accused’s examining trial, being only hearsay.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 973-983; Dec. Dig. §§ 419, 420.]
    2. Criminal Law (§ 543) — Evidence—Notes of Testimony at Examining Trial.
    A letter by a witness, who testified at accused’s preliminary examination, which stated that the witness had changed his address from Texas to Alabama, although identified as written by the witness, does not furnish sufficient foundation for the introduction of the testimony given at the examining' trial, the letter not showing that the witness was without the state at the time of the trial, which occurred a month or more after it was written.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1233, 1236; Dec. Dig. § 543.]
    3. Criminal Law (§• 442) — Documentary Evidence — Admissibility.
    Letters purporting to have been written by a witness who testified at accused’s examining trial are inadmissible to show that he was without the state unless identified as written and signed by the witness.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1027; Dee. Dig. § 442.]
    4. Criminal Law (§ 543) — Evidence—Notes of Testimony at Examining Trial.
    It is only when a witness has permanently gone beyond the jurisdiction of the court that his testimony given at the examining trial can be received; a temporary absence not rendering it admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1233, 1236; Dec. Dig. § 543.]
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    John W. Anderson was convicted of murder, and he appeals.
    Reversed and remanded.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted of murder, and his punishment assessed at five years’ confinement in the state penitentiary.

We do not deem it necessary to discuss but one question raised in the motion for new trial, for in our opinion none of the others present error. The state was permitted, on the trial of the case, to introduce the testimony of G. R. Rosser, taken at the examining trial, over the objection of appellant. The only proof offered on the trial to show that Rosser was a nonresident and beyond the jurisdiction of the court was: First, the return of the sheriff on a subpoena issued for Rosser, which reads as follows:

“Not executed as to G. R. Rosser, who could not be found in Galveston county after diligent search and inquiry, and the diligence used in finding said witness being, on going to his last place of employment at Fowler & McVitie, the information received as to the whereabouts of said witness being he has left for Montgomery, Alabama, to reside in the future.”

Objection was made to that part of the return which stated the sheriff was informed at Fowler & McVitie’s that Rosser had gone to Montgomery, Ala., to reside in future. Was this return admissible to prove that the witness was a nonresident? It bears on its face that it is a hearsay statement— something that some one at Fowler & MeVi-tie’s told the sheriff, not even giving the name of the informant. If either Fowler or McVitie or any one at the store knew that Rosser had moved beyond the confines of the state, such person was certainly within reach of the process of the court, and the sheriff would not be permitted to testify that he had been so told by such person, and neither would a return made on such hearsay statement be admissible to prove that fact. No one would contend, we do not think, that it would have been permissible for the sheriff to testify that Mr. Fowler or Mr. McVitie had told him that Rosser had moved from this state to another state. The only other evidence introduced on the trial to show that Rosser was a nonresident was a letter signed G. R. Rosser, dated at no place, and there was no proof from where it came, the letter stating, “I am writing you to inform you that I have changed my address from Galveston, Texas, to Montgomery, Ala.” Mr. Bird testified that he knew the signature of Ros-ser, and this perhaps rendered the letter admissible, but was this sufficient proof to render the evidence taken at the examining trial admissible? Does it show a permanent removal from the state? We do not think it can hardly be so contended, and the letter taken as a whole would indicate a willingness to attend the trial of the case if promptly notified. This letter was written December 14, 1913, and the trial did not take place until about one month thereafter, yet the record does not disclose there was any effort made to secure the attendance of the witness, or proof that he had permanently gone beyond the jurisdiction of the court. The prosecuting officer evidently recognized that this evidence was insufficient to render the testimony admissible, and when a motion for new trial was filed after conviction, he got in communication with the witness and secured communications from him showing a permanent removal, and attached the communications to a contest to the motion for new trial. But as to the proof offered on the motion for a new trial, would such letters have been admissible on the trial had he then been in possession of them? No proof was offered that the communications attached to the contest were in the handwriting of Rosser, or that they bore his signature. They could not and did not prove themselves. If the prosecution had been in possession of these later communications at the time of the trial, they would not have 'been admissible unless some proof had been offered that they were in his handwriting, or that the signature attached thereto was the signature of the witness. Under such circumstances the exhibits introduced on the hearing of the motion for new trial added no strength to the state’s case, and appellant’s motion to strike them from the record should have been sustained, unless the state had introduced some proof that the communications were in the handwriting of Rosser, or that the signature attached thereto was in fact his signature. If Mr. Bird could testify to the signature and writing in the letter introduced on the trial, he certainly could have testified whether or not the handwriting and signature to the communications attached to the contest of the motion for -new trial was in fact the handwriting of Rosser. Bird was in the jurisdiction of the court, and he could have been secured. Certainly without any further testimony the letters did not prove themselves, and under such circumstances they added no strength to the state’s case.

The evidence given at the examining trial by Rosser was very material — in fact was the main reliance of the state — and it, having been admitted in evidence without a proper predicate having been laid, presents reversible error. It is only when it is shown that a person has permanently gone beyond the jurisdiction of the court that his testi-

mony can be reproduced; a temporary absence does not render it admissible.

We have carefully gone over the record, and in our opinion the other bills present no error.

The judgment is reversed, and the cause remanded.


text:
    BARNETT v. STATE.
    (No. 3212.)
    (Court of Criminal Appeals of Texas.
    Oct. 14, 1914.)
    1. Criminal Law (§ 982) — Suspension of Sentence — Recommendation by Juey.
    Under Acts 33d Leg. c. 7, § 1, providing that before a sentence can be suspended, an application for suspension must be made in writing, a recommendation in the verdict that sentence be suspended may be disregarded by the judge, where no application for suspension was filed before the verdict was rendered.
    [Ed. Note. — For other cases, see Criminal Law,^ Cent. Dig. §§ 2500, 2501; Dec. Dig. §
    2. Criminal Law (§ 1090) — Appeal—Bills of Exception — Presenting Questions in Lower Court.
    Where there are no bills of exception in the record on appeal in a criminal case, and no exception was taken to the charge of the court before verdict was rendered, grounds in the motion for new trial complaining of the court’s charge cannot be considered.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    Appeal from Special District Court, Gray-son County; W. J. Mathis, Judge.
    J. H. Barnett was convicted of selling liquor in prohibition territory, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was indicted for selling liquor in prohibition territory, and upon trial the jury returned the following verdict:

“We, the jurors, find the defendant guilty as charged and assess his punishment at confinement in the penitentiary for one year. We, the jurors, recommend that sentence be suspended as this being the first offense.”

The question arises, Is a jury authorized to recommend a suspension of the sentence when no application has been made by the person on trial? We think not. The law is plain. Before a sentence can be suspended, “application therefor must be made in writing, sworn to and filed before the trial begins.” Section 1, c. 7, Acts 33d Leg. As no application was filed until after verdict, the court properly ignored that portion of the verdict of the jury and correctly passed sentence on the appellant. In the absence of an application voluntarily made by the appellant, filed before the trial begins, the jury and the court are without authority to suspend the sentence. A strict compliance with the terms of this act of the Legislature is required before one is entitled to the benefits of its terms. Had the appellant filed an application for suspension of sentence, the state would then have been permitted to introduce testimony on that issue, but it was not entitled to do so until the plea had been filed. The form of indictment in this case has been frequently approved by this court, and the court did not err in refusing to arrest the judgment.

There are no bills of exception in the record, and no exception was taken to the charge of the court before verdict was rendered, consequently those grounds in the motion for new trial complaining of the court’s charge cannot be considered by us.

The judgment is affirmed.


author: HARPER, j.

text:
    BOREN v. STATE.
    (No. 3265.)
    (Court of Criminal Appeals of Texas.
    Oct. 21, 1914.)
    Criminal Law (§ 1097) — A:ppea]>-Recobd— Matters Presented foe Review.
    On appeal from a conviction for unlawfully carrying a pistol, the refusal of a special charge, based on accused’s contention that he was on his own premises, could not be reviewed, in the absence of a statement of facts, as it could not be determined whether such issue was raised by the testimony.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2862, 2864, 2926, 2934, 2938, 2939, 2941, 2942, 2947; Dec. Dig. | 1097.]
    Appeal from 'Dallas County Court, at Law; W42P. Whitehurst, Judge.
    S. E. Boren was convicted of unlawfully carrying a pistol, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, j.

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

By the special charge requested we should judge that the contention made by appellant was that he was on his own premises; but as no statement of facts accompanies the record, we cannot determine whether or not that issue was raised by the testimony. In the absence of a statement of facts, no issue is raised in the motion for a new trial which we can review.

Affirmed.


text:
    JOHNSON v. STATE.
    (No. 3217.)
    (Court of Criminal Appeals of Texas.
    Oct. 14, 1914.)
    1. Forgery (§ 29) — Indictment—Suericien-cy — Innuendo.
    An indictment for forgery, containing the following innuendo: “That in said false and forged instrument, if true, the words, ‘Bmt. Tex.,’ were * * * intended for ‘Beaumont, Texas,’ and the name ‘T. G. Tigmosk’ * * * was meant * * * for ‘T. G. Lignoski’; and the said instrument * * * was intended for an order from Ed Weiss upon the Sun Pipe Line Company * * * in favor of T. G. Lig-noski, whereby the said Sun Pipe Line Company should pay to the said T. G. Lignoski” a certain sum — sufficiently explained the instrument set out m the indictment to make it available as a basis of the charge of forgery and render the indictment good.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 77-81; Dec. Dig. § 29.]
    2. Criminal Law (§ 363*) — Evidence—Res Gestas.
    In a prosecution for foi’gery, testimony that defendant brought tó the witness an order signed by W., and that because it was not properly worded the witness wrote out the order copied in the indictment and introduced in evidence, and gave it to defendant, telling him that if he would get W. to sign it he would cash it for him, and that defendant subsequently returned with such order with W.’s name signed thereto, whereupon the witness cashed same, was admissible as part of the res gestse.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 804; Dec. Dig. § 363.1
    3. Criminal Law (§ 369) — Evidence or Contemporaneous Transactions — Admissibility.
    In a prosecution for forgery of an order, purporting to be signed by W. on the S. Co., a witness’ testimony that he had purchased another order from defendant signed by W. on such company at about the same time was properly admitted, where defendant admitted that he sold the alleged forged order, but claimed that it had been given to him by a third person to cash, and that he did not sign W.’s name thereto.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 822-824; Dee. Dig. § 369.]
    Appeal from District Court, Jefferson County; W. H. Davidson, Judge.
    Reed Johnson was convicted of forgery, and appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was convicted of forgery, and his punishment assessed at five years’ confinement in the state penitentiary.

The indictment in this case contained the following innuendo or explanatory averments :

“That in said false and forged instrument, if true, the words, ‘Bmt. Tex.,’ were meant and intended for ‘Beaumont, Texas,’ and the name ‘T. G. Tigmosk’ in said false instrument aforesaid was meant and intended for ‘T. G. Ligno-ski’; and the said instrument aforesaid, if true, meant and was intended for an order from Ed Weiss upon the Sun Pipe Line Company, a corporation, in favor of T. G. Lignoski, whereby the said Sun Pipe Line Company should pay to the said T. G. Lignoski the sum of six and 80/100 ($6.80) dollars for unloading pipe and loading coal.”

The instrument set, out in the indictment, with those explanatory averments, could be made the basis of a charge of forgery, and the court did not err in refusing to quash the indictment, and in overruling the motion in arrest of judgment.

Appellant objected to T. G. Lignoski testifying that appellant brought him an order signed 'by Ed Weiss, but on account of •the way it was worded he declined to purchase it; that he (Lignoski) then wrote out the order copied in the indictment and intro-dueed in evidence and give it to appellant, and told him if he would get Mr. Weiss to sign it he would cash it for him. Lignoski further testified that appellant went off with the order that he had written and returned with Ed Weiss’ name signed .thereto, when he cashed the order for appellant. This evidence was all res gestse of the transaction, and the court did not err in admitting it.

In another bill it is contended that the court erred in permitting Gus Higsby to testify that he purchased an order from appellant for $8 signed Ed Weiss, and on the same company, and about this same time. Appellant testified and admitted he had sold the alleged forged order to Lignoski, but claimed it had been given him by Hiram Reed to cash; that he did not sign Ed Weiss’ name thereto. Under such circumstances it was not error to permit evidence of a contemporaneous transaction by appellant of the same character and kind, when properly limited by the charge of .the court, as the court did in this case.

The only other bill complains of the action of the court in refusing to give peremptory instructions to acquit. This presents no error. The circumstances testified to were ample to justify the jury in finding that appellant signed the name of Ed Weiss to the order in question, and the court charged on circumstantial evidence in language frequently approved by this court.

The judgment is therefore affirmed.


text:
    Ex parte HANCOCK.
    (No. 3322.)
    (Court of Criminal Appeals of Texas.
    Oct. 21, 1914.)
    Habeas Corpus (§ 92*) — Scope of Inquiry-Extradition.
    Where a person is arrested for extradition as a fugitive from justice, the question of his guilt or innocence will not be tried.
    [Ed. Note. — Eor other cases, see Habeas Corpus^ Cent. Dig. §§ 81, 83, 87-96; Dec. Dig. §
    Appeal from District Court, Montague County; C. E. Spencer, Judge.
    Habeas corpus by Jud Hancock. From á judgment remanding relator to custody, he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was arrested under a complaint charging him with being, a refugee from justice. Upon a trial, the justice of the peace entered a judgment remanding him to the custody of the officer. He sued out a writ of habeas corpus before 1-Ion. C. F. Spencer, judge of the district court of the Sixteenth judicial district. Upon hearing the application, Judge Spencer remanded him to the custody of the officers. It is made to appear by the record that between the time of his arrest and the hearing had before Judge Spencer, his excellency

Gov. O. B. Colquitt, on the requisition of the Governor of Oklahoma, had granted extradition papers and ordered delivery of relator to J. W. Biffle, the agent of the Governor of Oklahoma, to be by him taken back to stand trial for an offense pending in that state.

The only evidence offered by appellant is, he testified he was not guilty of the offense charged. This issue will not be tried here, but can be tried in the court where the offense is pending. The questions herein raised were discussed, and disposed of adversely to appellant’s contention in the case of Ex parte Stanley, 25 Tex. App. 376, 8 S. W. 645, 8 Am. St. Rep. 440, and relator is remanded.

Affirmed.


text:
    EADS v. STATE.
    (No. 3231.)
    (Court of Criminal Appeals of Texas.
    Oct. 14, 1914.)
    1. Homicide (§ 190) — Threats.
    Where, in a prosecution for homicide, accused’s evidence of communicated threats is denied, the question is whether or not accused had been told that threats had been made by deceased against him and he so believed, and not whether the threats had actually been made.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 399-413; Dec. Dig. § 190.*]
    2. Criminal Law (§ 547) — Reproduced Testimony.
    An alleged’s stenographer’s report of the evidence of witnesses who had gone out of the jurisdiction should not have been admitted until some proof had been given that the report was in fact the testimony given by the witnesses on the former trial.
    [Ed. Note. — For other cases, .see Criminal Law, Cent. Dig. §§ 1237-1246; Dec. Dig. § 547.]
    3. Criminal Law (§ 721%) — Triai>-Miscon-duct of Counsel.
    Under Code Cr. Proc. 1911, art. 795, providing that in all criminal cases a husband and wife may be witnesses for each other, but “they shall in no case testify against each other” except in prosecutions for an offense committed by one against the other, it was error for the state’s attorney, on cross-examining accused, to ask him if he did not know that his wife could not testify unless he waived his objection to her testimony, and on objection to state that the authorities held that a wife could testify unless accused objected, and that the state could tender the wife as a witness, and if he objected, her mouth was closed, and, having forced accused to object by placing the wife on the stand, to argue to the jury that accused had closed the mouth of his wife by refusing to waive objections to her testimony.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1673; Dec. Dig. § 721%.]
    4. Criminal Law (§ 721%) — Trial—Argument of Counsel — Failure of Wife to Testify.
    Where, in a prosecution for homicide, accused testified to threats alleged to have been made by deceased against him and communicated by accused’s wife, but did not call the wife to testify, such omission was a proper subject of argument by the state’s attorney as bearing on the effect of such evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1673; Dec. Dig. § 721%.]

      5. Witnesses (§ 62) — Competency—Wiee-of Accused.
    Disqualification of a wife to testify against her husband in a criminal case other than for an offense committed against her by Code Cr. Proc. 1911, art. 795, cannot be waived by the husband.
    [Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. § 177; Dec. Dig. § 62.]
    6. Criminal Law (§ 369) — Evidence—Character of Accused — Other Offenses.
    In a prosecution for homicide, it was improper for the court to permit the state to ask witnesses for accused on cross-examination whether they had not associated with accused, drunk with him, and branded cattle with him, for the purpose of raising an inference that accused was also a cattle thief.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 822-824; Dec. Dig. § 369.]
    7. Criminal Law (§ 1092) — Appeal—Bill of Exceptions — Bystanders’ Bill.
    Where the court, in approving a bill of exceptions to alleged misconduct of the private prosecutor in argument in stating that because another jury had failed to do their duty by only giving accused 10 years in the pen was no reason why the present jury should render such a verdict, stated that the argument was in reply to argument of accused’s counsel, without stating what such argument was, a bystander’s bill, reciting the language used by the private prosecutor, but making no reference to the court’s modification, or stating what argument had been used by accused’s counsel, was unavailable.
    TEd. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2919; Dec. Dig. § 1092.]
    8. Criminal Law (§ 722}4) — Former Conviction — Reference in Argument.
    Where a former conviction has been set aside, reference thereto in argument on a subsequent trial is a violation of Code Cr. Proc. 1911, art. 843, and it is the court’s duty to see that the law is complied with in that regard.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1673; Dee. Dig. § 722%-]
    9. Criminal Law (§ 854) — Separation of Jury.
    Where, in a prosecution for homicide, 2 jurymen were allowed to go to a drug store for a drink at a soda fountain while the others remained outside, and 10 of the jury went into the courtroom and took their seats while the other 2 remained outside in a toilet, and the jury were taken to the wagon yard, and those who had horses were permitted to go and get feed for them while the other jurors remained out of the stable and in the yard, there was a violation of Code Cr. Proc. 1911, art. 745, requiring that jurors be kept together.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2039-2047; Dec. Dig. § 854.]
    Prendergast, P. J., dissenting.
    Appeal from District Court, Collingsworth County; J. A. Nabers, Judge.
    Elbert Eads was convicted of murder on implied malice, and he appeals.
    Reversed and remanded.
    See, also, 147 S. W. 592.
    6. H. Culp, of Gainesville, R. E. Taylor, of Henrietta, and J. L. Lackey and Clinton Small, both of Wellington, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant' was convicted of murder upon implied malice, and his punishment assessed at 15 years’ confinement in the state penitentiary.

The court gave a very full and fair charge with one exception. The defendant testified to threats being communicated to him; two witnesses testified they had communicated the threats to defendant. The state did not concede that the threats had been made, but seriously contested that issue, and yet the court in his charge required the jury to find that the threats had been made, instructing them:

“Now if you shall 'find that the deceased had made threats against the life of defendant, and that such threats had been communicated to the defendant,” etc.

This is not the law where there is an issue in the case as to whether or not the threats had been made, but if defendant had been told that threats had been made by deceased and he so believed, he would have the right to act, even though the threats had not in fact been made. Buckner v. State, 55 Tex. Or. R. 517, 117 S. W. 802, and cases there cited. While the objections made to the charge at the time it was presented to counsel were not specific enough .to call the court’s attention to this error in the eharge ■perhaps, yet we call attention to it so that it will not occur on another trial.

Appellant, in two bills of exception, complains of the action of the court in permitting the testimony of John Brown and Clark Hughes to be reproduced. The evidence sufficiently shows that both were beyond the jurisdiction of the court; that Brown is now a permanent resident of Oklahoma, and Hughes a resident of New Mexico. Whorton v. State, 152 S. W. 10S3 and cases there cited. But the record before us does not disclose that there was any proof offered that the statements introduced in evidence were in fact the evidence of said witnesses. It appears that what is termed a stenographer’s report of the evidence of the witnesses was introduced, but the stenographer who took the testimony did not testify in the ease, and no person testified that this in fact was the testimony of the gentlemen named. Some proof should have been made that this was in fact their testimony on the former trial before the evidence should have been admitted.

By various bills of exception the following facts are shown: First. That while appellant was testifying he was asked the following question: “Xou know that under the law your wife cannot testify in this case unless you waive your objections to her testimony,” and when appellant’s counsel objected to the question, state’s counsel remarked: “All the authorities hold that a wife can testify unless the defendant objects to same — we can tender this woman as a witness, and if they object, her mouth is closed, but if they do not object, the law boohs say that the witness is competent.” Second. After apipollant had testified' counsel for the state called Mrs. Eads, appellant’s wife, around and had her take the witness stand, and forced appellant then and there in the presence of the jury to object to her testifying. And third, in his closing argument to the jury state’s counsel argued to the jury that “appellant had closed the mouth of his wife by refusing to waive objections to her testimony with reference to the threats made which had been testified about, which she communicated to the defendant,” etc. It was highly improper to permit state’s counsel to call appellant’s wife to the witness stand. Article 795 of the Code of Criminal Procedure provides that:

“The husband and wife may, in all criminal actions, be witnesses for each other; but they shall, in no case, testify against each other, except in a criminal prosecution for an offense committed by one against the other.”

This provision of the statute is discussed at length in Brock v. State, 44 Tex. Cr. R. 339, 71 S. W. 20, 60 L. R. A. 465, 100 Am. St. Rep. 859, and the authorities digested, and it was there held that was a matter the person on trial could not waive, because the statute had provided that she was an incompetent witness; that she can be a witness for him, but not against him, and when called by him she can only be cross-examined about matters which he had elicited on direct examination. Of course, this would embrace matters which would tend to show that her testimony was false, but in no instance can the state first call the wife as a witness except in case of an offense committed by him against her. The rule as announced in the Brock Case, supra, has been adhered to in Davis v. State, 45 Tex. Cr. R. 292, 77 S. W. 451; Spivey v. State, 45 Tex. Cr. R. 496, 77 S. W. 444; Yeiral v. State, 56 Tex. Cr. R. 267, 119 S. W. 848; Woodall v. State, 58 Tex. Cr. R. 513, 126 S. W. 591.

Appellant on the trial of this case had testified that his wife had told him not to go after the things at deceased’s (her father’s) house, that her father would not allow appellant on the place, and had said if appellant did come on the place he (deceased) would kill him. Hildred Hill also testified that he was present and heard Mrs. Eads so tell appellant. This was one of the threats relied on by appellant to show deceased’s state of mind towards him, and how the transaction really appeared to him at the time of the killing if deceased did the things appellant contended he had done. The state recognized the force of this testimony, and improperly sought to break the force of it. If after appellant and Hill had so testified and he did not see proper to call his wife as a witness, the fact he had not called her as a witness could be referred to by counsel for the state in their argument, as has been frequently decided by this court, for it was in his power to call her as a witness. Reeseman v. State, 59 Tex. Cr. R. 430, 128 S. W. 1126; Battles v. State, 53 Tex. Cr. R. 202, 109 S. W. 195; Tabor v. State, 52 Tex. Cr. R. 387, 107 S. W. 1116; McMichael v. State, 49 Tex. Cr. R. 422, 93 S. W. 723; Richardson v. State, 44 Tex. Cr. R. 211, 70 S. W. 320, and cases cited. In many of the states it is held otherwise. Knowles v. People, 15 Mich. 408; Cole v. State, 75 Miss. 142, 21 South. 706; State v. Shouse, 188 Mo. 473, 87 S. W. 480, and cases cited. But in Texas the rule has become settled that it is not improper to refer to the fact that the defendant had failed to call his wife to substantiate his testimony when she is placed in position where she could do so, for the law gives him that privilege. However, we have never gone to the extent of holding that the state, while introducing its evidence, could so use the wife as to convey to the jury that, if permitted the wife would testify against the husband and give the lie to the testimony introduced by him and testified to by him. Appellant had not closed the mouth of his wife—the law did that. Whether it is best for the law to do so may be a question about which minds differ, but we do not think any one can question that it is the law that does so now.

Neither, under the authorities, was it a provision of law which appellant could waive in behalf of the state, and counsel for the state was in error in so stating in the presence of the jury, and it was highly improper for him to ask appellant while on the witness stand “if he, appellant, would waive his objections and permit his wife to testify in behalf of the state.” This was unfair-cross-examination, for the law does not sanction him giving such waiver. He had killed his wife’s father. If he did not desire his wife to testify that continued friendly relations might continue between her and her mother, this was commendable in him. If, on the other hand, his wife had turned against him because he had killed her father, the law says that the communications that took place between her and appellant should not be disclosed by the wife, and she cannot testify against him now that, perhaps, she feels unfriendly towards him because he is charged with killing her father. The state by its remarks and by its conduct could not have done otherwise than to have created the impression on the minds of the jury that if “appellant had not closed the mouth of his wife” she would have denied communicating any such threat to appellant as he testified to and the witness Hill testified she did communicate, and this was the object and purpose of the state in its conduct and by its remarks. Such evidence from that source, the law says, is inadmissible, and it was such error as ought to and will cause a reversal of this case.

Again it is shown by bills that in the cross-examination of appellant and his witnesses the question was asked “if it was not a fact they associated with appellant, drank with him, and branded cattle with him,” and that such fact was commented on by the private prosecution in his closing speech. It is always permissible to show association, friendly relations, and that the witness worked with appellant, as showing his interest and bias, and as affecting the credibility of his testimony, and if this was the object and purpose of the prosecution in asking the questions, there was no error. Mason v. State, 7 Tex-. App. 623; Bonnard v. State, 25 Tex. App. 195, 7 S. W. 862, 8 Am. St. Rep. 431; Bennett v. State, 28 Tex. App. 342, 13 S. W. 142; Reddick v.State, 47 S. W. 995; Green v. State, 54 Tex. Cr. R. 3, 111 S. W. 933; Gelber v. State, 56 Tex. Cr. R. 462, 120 S. W. 863. However, if the object and purpose, as contended by appellant, was to elicit testimony tending to show that appellant was a cow thief, and it was so used in argument, it was error, for appellant had the right to be tried as to whether or not he was guilty of this offense, and only testimony legitimately bearing on that issue should have been admitted. And the fact that he was a cattle thief, if'he is one, should not have been paraded before the jury to prejudice their minds against him. Some of the questions asked appellant on cross-examination, if he had been associated with a certain person in branding cattle, not a witness in this case, and who has been before this court charged with the crime of cattle theft, would seem to bear out the contention of appellant. However, the bill is not full enough in its allegations to show that this was the purpose of the state, and as presented they show no error, but we have said this much so that on another trial, if it should appear to the court that this was the object and purpose of the questions, appellant’s objections should be sustained. None of the witnesses to whom the questions were propounded had ever branded cattle with appellant, if they state the truth, and certainly the state had been misinformed, or it had some object other than to show intimacy in propounding the questions, but it was elicited that appellant had branded cattle with a person who had been before the court charged with cattle theft in that same county, and who was not a witness in this case.

Again it is shown that in argument the private prosecution urged that “because one jury has miscarried, or has made possible the miscarriage of justice in this case, is no reason why you should,” and “because another jury in this county failed to do their duty by only giving this man 10 years in the pen is no reason why there should be coming from this courtroom at this time any such verdict, inviting and permitting blood and murder to stalk forth and be congratulated.” The court, in approving these bills, says that such argument was in reply to the argument made by appellant’s counsel, without stating what argument appellant’s counsel made. Appellant refused the bill as thus qualified and proved the remarks were made by private prosecution in a bystander’s bill, but in his bill he does not have his witnesses state that counsel for appellant had not referred to the prior trial and the prior conviction. The language attributed to private prosecution in both bills is exactly the same, the only difference in the two being that the court says such remarks were made in reply to argument of appellant’s counsel, while the bystander’s bill is silent on that question. Counsel for appellant in this court vehemently deny that they said anything about appellant having been convicted on the former trial and given 10 years in the penitentiary. If appellant desired to except to the qualification of the' court in his bystander's bill he should have shown that he did not refer to the former conviction and sentence in his argument to bring the matter properly before us for review. Article 843 of the Code provides that in ease of a new trial “the former convictions shall be regarded as no presumption of guilt, nor shall it be alluded to in the argument.” If counsel for appellant had referred to the former conviction in his argument, he was transgressing the law, and he should have at once been stopped by the court, and his conduct would have to be very pronounced in this respect before state’s counsel would be authorized to use the argument the bills show he did use in this case. The law says that the former conviction shall not be referred to in the argument, and we trust that the trial court will see that it is obeyed on another trial.

Counsel also complain of the separation of the jury. The bills as qualified would not, in and of themselves, perhaps, present reversible error. But we have carefully read the testimony adduced on the hearing, and it shows that 2 jurymen were allowed to gó in a drug store and get a drink at a soda fountain while the others were on the outside; that 10 of the jurymen went into the courtroom with the officer and took their seats in the jury box, while the other two were outside of the courtroom in a water-closet ; that the jury was taken to the wagon yard, and those who had horses therein were permitted to go and get feed and take it to their horses, while the others remained out of the stable and in the yard. It is further shown that the court reprimanded the officer in charge of the jury on one of these occasions. If the trial courts would request the officers to pay more attention to article 745 of the Code, and if they did not do so, inflict such punishment as would in future compel and enforce a compliance with that article, this question would not be before us so often. A few good-sized fines or a few hours in jail, and the trial courts nor would we be troubled with this matter in future. That should never be an issue in a motion for a new trial, and will not be if the officers will pay attention to the mandates of the law. In a felony case, in no event shall one of the jury be permitted to separate from the others, unless by permission of the court, with the consent of counsel, and then such juryman must be in charge of an officer.

There is a bill complaining that the jury, during their retirement, discussed the former conviction of appellant. It is not surprising if they did so, taking into consideration the argument had on the trial. But the evidence is very vague and indefinite as to this matter, and we will not discuss it further, trusting if it did occur on this trial, that it will not do so on the next trial.

We never like to refer to such matters, but this record, to use the vernacular of the street, shows, on the part of the private prosecution in this case, a systematic system of “gouging” from the beginning to the end of the trial. This should not and will not be tolerated. As has been said before by this court, one of the first lessons which a prosecuting officer should learn is that the state does not expect, and much less will she tolerate, the use of any unfair means and arguments to secure the conviction of one charged with crime. If a conviction of the accused cannot be had fairly, then the state does not ask and will not have the conviction, because it is tainted with, if not founded upon, injustice and wrong conduct. This man may be guilty or waylaying and assassinating his father-in-law, as the evidence for the state would tend to show, but the testimony offered in his behalf would show that he did not waylay deceased, but was on his way home, when deceased rode up on him, and that the killing took place under circumstances justifying his conduct. We hope on another trial that the issues thus made will be fairly tried, and outside, extrinsic matters will be excluded, and no improper find unfair advantage will be sought to be had by counsel.

The judgment is reversed, and the cause remanded.

PRENDERGAST, P. J., dissents.


text:
    WILSON v. STATE.
    (No. 3240.)
    (Court of Criminal Appeals of Texas.
    Oct. 21, 1914.)
    Criminal Law (§ 1121) — Appeal— Statement of Pacts — Necessity.
    In the absence of a statement of facts, the sufficiency of the evidence to justify a conviction cannot be reviewed.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2938, 2939; Dec. Dig. § 1121.]
    Appeal from District Court, Calhoun County; John M. Green, Judge.
    Henry Wilson was convicted of highway robbery, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was convicted of highway robbery, and his punishment assessed at death.

The record before us contains neither a statement of facts nor any bills of exception. The only ground in the motion for new trial reads as follows: “Because the verdict of the jury is contrary to the evidence.” Without a statement of "facts, it is impossible for us to review this ground. As the death penalty was assessed, we regret that the record comes to us in this condition; but, as it does, we can only affirm the judgment.

The'judgment is affirmed.


author: DAVIDSON, J.

text:
    HILL v. STATE.
    (No. 3269.)
    (Court of Criminal Appeals of Texas.
    Oct. 21, 1914.)
    Criminal Law (§ 1124*) — Appeal—Presentation for Review.
    Motions for new trial, based on" the insufficiency of the evidence to bring defendant within the indictment, could not be reviewed by the appellate court, where the evidence was not in the record.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2939, 2946-2948; Dec. Dig. § 1124.*]
    Appeal from District Court, McLennan County; Richard I. Munroe, Judge.
    Wilson Hill was convicted of assault with intent to murder, and appeals,
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

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

The record contains neither bills of exception nor statement of facts. The motions for new trial, both original and amended, are based upon the insufficiency of the evidence to bring the appellant within the allegations of the indictment. The evidence not being before us, we are unable to decide that question.

The judgment must be affirmed.


text:
    WYNNE v. STATE.
    (No. 3257.)
    (Court of Criminal Appeals of Texas.
    Oct. 21, 1914.)
    Criminal Law (§ 1038*) — Appeal-Presentation Below — Instructions.
    Objections to instructions in a criminal case cannot be considered on appeal, when not presented below at the proper time.
    [Ed. Note. — Por other cases, see Criminal-Law, Cent. Dig. § 2646; Dec. Dig. § 1038.*].
    Appeal from District Court, Walker County; S. W. Dean, Judge.

      Arthur Wynne was convicted of stealing cattle and appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of the theft of cattle and the lowest punishment assessed.

The court gave a correct and apt charge to the jury. There is no bill of exceptions in the record. The only assignments in the motion for new trial are: First. The verdict was contrary to the law and evidence. We have carefully read the evidence and it is amply sufficient to sustain the conviction. Second. He attempts to complain of certain paragraphs of the court’s charge. No objection whatever is shown to have been made to the charge at the proper time. The only complaint is made in the motion for new trial. Therefore, this complaint cannot be considered.

The judgment is therefore affirmed.


text:
    COLEMAN v. STATE.
    (No. 3253.)
    (Court of Criminal Appeals of Texas.
    Oct. 21, 1914.)
    Criminal Law (§ 889) — Verdict — Discharge and Reconvening of Jury.
    Though the first verdict on a prosecution for theft is one unauthorized by law, it assessing the punishment at a fine alone, the court has no authority, after discharge and separation of the jury, to reconvene them, so that their second verdict, returned after being so reconvened, is a nullity.
    LEd. Note. — For other cases, -see Criminal Law, Cent. Dig. §§ 2109, 2110, 2112; Dec. Dig. § 889.*]
    Appeal from Gregg County Court; J. H. McHaney, Judge.
    Jim Coleman was convicted of theft, and appeals.
    Reversed and remanded for new trial.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted of theft. It appears that after the jury, upon being charged, retired to consider of their verdict, they afterwards returned into open court 'the following verdict:

“We, the jury, find the defendant guilty, and assess his punishment at a fine of thirty-seven dollars.”

The court accepted the verdict and discharged the jury. After discharging the jury, and they had left the courtroom, the court’s attention was called to the fact that the verdict was not responsive to the charge, and was one unauthorized by law, in that the law requires, in case of theft, the punishment shall be confinement in the county jail and fine, or by confinement in jail alone, without fine. In no event is the jury authorized to assess the punishment by fine alone in case of theft. He then had the jury recalled, explained to them he could not accept the verdict, and called their attention to the law. The jury was again placed in retirement, when they returned the following verdict, upon which the judgment is based:

“We, the jury, find the defendant guilty, and assess his punishment at thirty-seven days in jail.”

After the court had discharged the jury, and they had separated, he had no authority to reconvene them, and the last verdict returned is a nullity, and cannot support a judgment. Especially is this true when it is shown by the record that one of the jurymen, Hugh Echols, talked with Jasper Rod-den about the case and verdict while the jury was discharged and before they were recalled.

The first verdict is one not authorized by law, and the second being rendered after the jury had been discharged and separated, there is no verdict in this case upon which a judgment can be based. When the court ascertained that the verdict was an improper one, and he had discharged the jury, he should have promptly granted a new trial. As he did not do so, it becomes necessary for us to do so, and therefore the judgment is reversed, and cause remanded for a new trial.

Reversed and remanded.


text:
    POPE v. STATE.
    (No. 3262.)
    (Court of Criminal Appeals of Texas.
    Oct. 21, 1914.)
    1. Forgery (§ 15) — Elements of Offense.
    Under Pen. Code, art. 1006, declaring that if any person, with intent to defraud, shall make any false entry in any account book, he shall be punished, the essentials of the offense are the making of a false entry and the intent to defraud.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. § 50; Dec. Dig. § 15.]
    2. Criminal. Law (§ 761) — Trial—Instructions — Weight of Evidence.
    In a prosecution for making a false entry in an account book, a charge that if the jury found that accused was a bookkeeper, and as such with intent to defraud willfully and knowingly made a false entry, he should be found guilty, is erroneous in assuming that the entry was false.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1731, 1738, 1754-1764, 1771, 1853; Dec. Dig. § 761.]
    3. Criminal Law (§ 778) — Trial—Instructions.
    A further charge that if the alleged false entry was made by accused, but was correct and was a proper entry, and not made with intent to defraud, he should be acquitted, is not erroneous in placing upon accused the burden of proving his defense.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1846-1852, 1854-1857, 1960, 1967; Dec. Dig. § 778.]
    4. Forgery (§ 48) — Trial — Instructions— Sufficiency.
    A charge, in a prosecution for making a false entry in an account book, that if the jury believed that the alleged false entry was made by accused, but that it was correct and was a proper entry, and that it was not made with intent to defraud, he should be acquitted, is improper, because requiring the jury, as a con■dition to acquitting, to believe, not only that the entry was correct and proper, but that it was made without intent to defraud.
    [Ed. Note.—Eor other cases, see Forgery, Cent. Dig. §§ 124-128; Dec. Dig. § 48.1
    5. Forgery (§ 47)—Prosecution—Evidence —Sufficiency.
    In a prosecution for forgery, held that, under the evidence, accused was not entitled to a directed verdict of acquittal.
    [Ed. Note.—For other cases, see Forgery, Cent. Dig. § 123; Dec. Dig. § 47.1
    Appeal from District Court, Potter County; James N. Browning, Judge.
    D. W. Pope was convicted of mating a false entry in an account book with intent to defraud, and be appeals. manded.
    Reversed and re-
    Reeder & Dooley, of Amarillo, for appellant. Henry S. Bishop, Dist. Atty., and Grudgington & Works, all of Amarillo, and C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, P. J.

Appellant was convicted for making a false entry in an account book with intent to defraud, and his punishment fixed at a fine of $1,000.

The statute is (article 1006, P. C.): “If any person, with intent to defraud, shall make * * * any false entry in any book kept as a book of accounts, * * * he shall be” punished as prescribed. The indictment alleged, in substance, that appellant was the bookkeeper of a grocery company—a corporation—in Amarillo on November 25, 1911; that on said date, with intent to defraud said company, he made in a certain book of accounts of said corporation this false entry, “Frt Car Cnd Goods Plv 363 56,” which is alleged to mean, “freight on a car of cánned goods, Plainview, $363.56,” and was false, because it shows and makes it appear from and by said entry that said corporation paid out to and on account of its branch house at Plainview said sum of money for and on account of freight charges due for that purpose, whereas, in truth and in fact, the corporation did not pay to nor for said branch house said sum of money, and that thereby said corporation lost said sum of money. The evidence tends strongly to show, if it does not clearly do so, that said •entry was false, that no such transaction occurred, that appellant himself converted that much money of the corporation to his own use, and that he made said false entry for the purpose of covering up his unlawful appropriation. The proof also, without question, showed that appellant, and no other, made said entry. It takes two essential 'things to constitute said offense: First, a false entry; and, second, that that entry was made with intent to defraud.

The court, in his charge, correctly stated the ease and the statute, as well as other necessary matters. Then in submitting the case to the jury for a finding, in addition to the other matters, he required them to believe beyond a reasonable doubt that appellant was the bookkeeper for said grocery company, etc., and as such bookkeeper he, in said county, on or about said date, “did then and there, with intent to defraud the said Nobles Brothers Grocery Company, willfully and knowingly make the alleged false entry in the book of accounts of said corporation in the manner and form set out in the indictment, then and in such case, you will find him guilty,” etc. It will be seen by this that he correctly required the jury to believe that appellant intended to defraud. But appellant claims that by this charge the court assumed that the entry was false, and did not require the jury to find that it was false. We think his contention is correct. There is no question but that the entry is “alleged” to be false. It might be conceded, also, that there is no question but that appellant made the entry; but the charge does not require the jury to find that the entry was false. The “alleged false entry, in the manner and form set out in the indictment,” is a very different thing from the entry being false in the manner and form set out in the indictment. As contended for clearly and forcibly by appellant:

“The vice in the charge is that it authorizes the conviction of this defendant in case the jury merely believes that he made the entry alleged by the state. Whether the entry was made, and if so, whether it was false, are two independent and distinct things. It is undisputed in the record- that appellant made the alleged entry, and therefore in response to the court’s charge the jury not only might, but should, say that appellant made the ‘alleged false entry’; but the conclusion that the appellant made such ‘alleged false entry’ does not by any means comprehend the further proposition that the entry was actually false. Under the court’s charge the jury was at liberty to convict this defendant upon a finding that he made the ‘alleged false entry,’ without the necessity of further finding that such entry was actually false.”

Appellant properly raised the question in various forms, and we think the charge is so radically wrong as to necessitate a reversal of the case.

Appellant also complains of the fifth paragraph of the court’s charge, which is:

“If you believe from the evidence that the alleged false entry, set out in the indictment, was made by the defendant, but you further believe that the same was correct, and was a proper entry in the alleged book of accounts, and you further believe that it was not made with intent on defendant’s part to defraud the said Nobles Brothers Grocery Company, then you will find him not guilty and return your verdict accordingly”

—contending that it placed the burden upon the appellant to prove his defense. We believe appellant’s complaint against this charge, in view of the authorities, cannot be sustained. Edens v. State, 41 Tex. Cr. R. 524, 55 S. W. 815; Overcash v. State, 148 S. W. 705, and authorities therein cited.

However, there are other criticisms against this charge which we think make it improper to give on another trial. This charge designates the entry as the “alleged false entry,” and tells the jury, in substance, that even if it was made by defendant, yet if they further believe that the same was a correct and proper entry, “and you further believe that it was not made with intent on defendant’s part to defraud,” etc., then to acquit. The question on this issuó was not whether the entry was “correct and proper,” but whether it was true or false; and it requires the jury to believe both that it was not only correct and proper, but, “and you further believe that it was not made with intent on defendant’s part to defraud.” If it was a true entry, the fact that it may have been intended to defraud would not make appellant guilty. If it was made with^ intent to defraud, and yet was a true and not a false entry, he would not be guilty.

While we do not pretend, to lay down a form for this charge, to be followed on the next trial, yet, in order to illustrate what we are trying to show, we would suggest that the charge be substantially this:

Even though you believe appellant made the entry in said book, yet, if you further believe that the same was a true entry, or that it was made by defendant, if so, with no intent to defraud said'grocery company, or if you have a reasonable doubt thereof, you will find him not guilty.

The only other question necessary to be considered is appellant’s contention that the court ought to have given a peremptory instruction to acquit appellant, because the testimony of the two expert accountants is, in effect, that the entries in the hook were correct bookkeeping. His cross-examination of each of these witnesses was very adroit. So is his contention that the effect of their testimony shows that said entry was correct bookkeeping; but to take the testimony of these two witnesses as a whole, we think it is not susceptible of the construction he claims, nor do they testify what he claims they do. The effect of their testimony is that if, as a matter of fact, appellant paid out the money of the corporation in payment for the freight on the car of goods shipped to Plain-view, then, of course, it would be correct bookkeeping to so make the entry. When they are made to say the entry was correct bookkeeping, their testimony was based on the assumption that it was a fact and a truth that the money was so paid out by him for the corporation — not that it was correct bookkeeping if not founded on a true and real transaction. It is correct bookkeeping and a correct entry in the books only in case it was a true and real transaction; that is, that he in fact paid out the money as freight on said car of goods. If, on the contrary, as the . evidence tends clearly to show, no such transaction really occurred, but that appellant took that much of the grocery company’s money, and in order to cover up his own misappropriation made the entry in the books, then it would be a false and not a true entry, and would not and could not be a correct nor proper entry, nor correct bookkeeping.

We have said this much in view of another trial. On another trial, if appellant is convicted, the jury can assess confinement in the penitentiary for the time prescribed by the statute, and they would not be limited to that part of the punishment which prescribes a fine only. This offense has no degrees like others wherein, if a conviction occurs for the lesser, it is an acquittal for the greater, and in a new trial only punishment for the lower can be prescribed.

Eor the error above pointed out, the judgment is reversed, and the cause remanded.