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

text:
    NEUVAR v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 14, 1914.)
    1. Animals (§ 50) — Stock Laws — ConsteucTION.
    The first stock laws applied only to hogs, sheep, and goats, and when, in Í897, it was first made a penal offense to permit stock to run at large after the stock law had been adopted, only the law relating to hogs, sheep, and goats was in force. Thereafter the stock law was extended to horses and cattle, and by Acts 26th Leg. c. 128, as amended by Acts 30th Leg. c. 57, it was made an offense to permit such animals to run at large. The two provisions are found in Pen. Code 1911 as articles 1241,1249; the first being Acts 25th Leg. c. 87, and the latter the act of 1899. Held, that only the act of 1899 applies to a violation of the stock laws by permitting horses and cattle to run at large, after the adoption of the stock law.
    [Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 148-157;. Dec. Dig. § 50.]
    2. Animals (§ 50) — Stock Laws — Adoption.
    Under Rev. Civ. St. 1911, art. 7238, providing that the petition for an election to prevent horses and cattle from running at large shall set forth clearly the classes of animals which the petitioners desire not to run at large, and, if the petition be for a subdivision of any county, the subdivision shall be particularly described, incorporated towns, included either within the subdivision or within the county, become subject to the stock law, if it is adopted, and hence, in a prosecution for violating the stock law, evidence of ordinances of an incorporated town included in the subdivision is admissible.
    [Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 148-157; Dec. Dig. § 50.]
    3. Municipal Corporations (§ 592) — Ordinances — Adoption.
    Under Code Or. Proc. 1911, art. 965, providing that mayors and recorders of incorporated towns .shall have concurrent criminal jurisdiction with justices of the peace, but that no person shall he punished twice for the same act or omission, although it may be an offense against the penal laws of the state, as well as the ordinances of a city, and that no ordinance shall be valid which provides a less penalty for any offense than is prescribed by the statutes, an ordinance denouncing an offense denounced by the general law must prescribe the same penalty and is admissible in evidence in a prosecution for such violation.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1311-1314; Dec. Dig. § 592.]
    4. Animals (§ 50) — Stock Laws — Defenses.
    In a prosecution for a violation of the stock law, where accused’s land and the place where he allowed his animals to run at large was clearly within the limits of the subdivision which adopted the law, the fact that the description of that subdivision was not accurate, and omitted a strip of territory leaving a hiatus between the two parts, was no defense.
    [Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 148-157; Dec. Dig. § 50.]
    5. Criminal Law (§ 1165) — Appeal and Error — Harmless Error.
    In a prosecution for violating the stock law, accused cannot complain of a charge which placed an additional burden on the state; that being to his benefit.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3085, 3086, 3088, 3089; Dec. Dig. § 1165.]
    Davidson, X, dissenting.
    Appeal from Lavaca County Court; P. H. Green, Judge.
    Ed Neuvar was convicted, of violating the stock law, and he appeals.
    Affirmed.
    Paulus & Ragsdale, of Hallettsville, 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

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

   PRENDERGAST, P. J.

Appellant was convicted and fined for violating the stock law, making it an offense to knowingly permit cattle, etc., to run at large where the stock law had been adopted at an election held therefor.

The prosecution was had under article 1249, P. C., based on article 7235 et seq., tit. 124, c. 6, of the Revised Statutes, Civil. By section 23, art. 16, of our Constitution of 1875, the Legislature was expressly authorized to pass laws for the regulation of live stock and the protection of stock raisers, and to exempt from the operation of such laws other portions, sections, or counties of the state. By a proviso in said section, it was provided that any local law thus passed should be submitted to the freeholders of the section to be affected thereby, and approved by them before it should go into effect.

It is unnecessary for us to recite the respective acts of the Legislature on this subject; they are shown by the citation to the respective acts in our Revised Statutes, Civil, and the articles of the Revised Code of 1911. The first enactment under this constitutional provision was in 1876, soon after the Constitution went into effect, and it provided for such election putting it in force to apply exclusively to hogs, sheep, and goats. For many years there was no criminal law making it an offense; but the law merely provided for impounding the stock; and subjecting it and the owner thereof to the damages incurred, costs, expenses, etc., by civil remedy alone. The first time the Legislature made it a penal offense to violate said law was the act 6f 1897, p. 112, now article 1241 of the 1911 Penal Code. While that act was general, there was no law which could be adopted by a vote of the people which applied to other than hogs, sheep, and goats. The provision of the law as to hogs, sheep, and goats is chapter 5, tit. 124, art. 7209 et seq., of the present Revised Statutes, Civil. As stated above, the provisions of the stock law as to horses, cattle, etc., is the next chapter of said Revised Statutes, and is entirely separate and distinct therefrom. The first time, it seems, the Legislature passed any act providing for such law to be adopted by vote was the act of 1899, p. 220. This law was amended by the act of 1907, p. 123, which, for the first time, prescribed an offense and the punishment therefor for violation thereof by any one permitting any horses, cattle, etc., to run at large. In the present Revised Statutes and Penal Code it seems reasonably certain that the Legislature intended that article 1241, P. C., should apply more particularly, if not exclusively, to hogs, sheep, and goats, and that article 1249 should apply to horses, cattle, etc. The said two articles of the Penal Code are taken, in the revision, from the general bills of the several acts on tie subject.

None of the statutory enactments providing for the adoption by vote of either of said stock laws excluded the incorporated towns or cities from being embraced within the territory designated within which such stock law should apply. On the contrary, all the statutory enactments clearly provide that the whole of the county, which, of course, would embrace any and all incorporated cities and towns therein, as well as when the election, is for any subdivision of such counties, shall or may be included, because it gives expressly the petitioners, who petition the commissioners’ court for an election in such precinct, the right and power to designate such subdivision of a county in their petition, and particularly describe the same by designated boundaries. Article 7238, R. S. This court and the civil courts of this state have all expressly held that this can be done, and that the act so providing is constitutional. Thompkins v. State, 47 Tex. Cr. R. 359, 83 S. W. 379; Roberson v. State, 42 Tex. Cr. R. 597, 63 S. W. 884; Armstrong v. Traylor, 87 Tex. 598, 30 S. W. 440; Graves v. Rudd, 26 Tex. Civ. App. 554, 65 S. W. 64. So that we think it is clear that the petition for the election in a certain part of Lavaca county designated by metes and bounds in the petition, the orders of the commissioners’ court, and in the adoption of the act, were perfectly legal and valid, although it embraced three incorporated towns within its boundaries; and that the freeholders within said incorporated towns could vote at such election the same as a freehold voter in any other part of the territory. Roberson v. State, supra. Besides this, even if the Legislature had the power and authority (which is unnecessary for us to decide herein) to except from any such subdivision any incorporated town or city, the appellant’s bill, nor the- record in this case otherwise, shows under what authority either of said towns were incorporated, nor the provisions of the charter thereof which would show that the Legislature had attempted to make any such exception. We do not regard the case of Reuter v. State, 43 Tex. Cr. R. 572, 67 S. W. 505, as applicable to the questions presented in this case. Hence the court did not err in permitting appellant to introduce the ordinances of the city of Hallettsville in evidence. The bill, nor record elsewhere, does not show what the penalty such ordinances prescribed for a violation of said law was. Under all the authorities and the statute, it could not be less nor greater. It had to be the same to be valid, and a prosecution and conviction under either the state or city law would be a bar to a prosecution under the other. Article 965, C. C. P.

The court did not err in telling the jury in the charge that the boundaries of the district in which said stock law had been adopted was sufficient to embrace the territory therein described. The point appellant makes on this question is that, because one witness testified that ‘‘there exists an open space or hiatus of about 300 or 400 varas between the southwest corner of the R. Cummings survey and the southeast corner of the A. Sherrill league; that is to say, the southwest corner of the R. Cummings survey and the southeast corner of the A. Sherrill league do not meet,” therefore the field notes of the territory embraced is insufficient to describe and designate any territory. The uncontra-dicted testimony shows that the witness took the county map, at the instance of both the state and the appellant, while testifying, and traced the lines in accordance with the calls of the whole territory so as to show, and he did testify, that the tract of land on which appellant lived, and where his stock was shown to run at large, was within said territory; that part of the field notes designating the prohibited territory is thus described: “Thence with the south line of said league [Cheeney league] to the south comer of same-on the east line of the R. Cummings survey; thence with the east line of the last-named survey to the southeast corner of same; thence with the south line of said survey to-the south corner of same; thence west with the south line of the A. Sherrill league to the-south corner of same on the Lavaca river.” So that it is seen from these calls that the southwest comer of the Cummings survey is not called for, nor is the call from that corner of the Cummings to the southeast corner of the Sherrill league made. It would make no difference even if there should be an-open space or hiatus between the southwest corner of the Cummings and the southeast corner of the Sherrill league; but, in accordance with the call of the designated territory, the line would be straight from the south corner of the Cummings survey west to and with the south line of the Sherrill league, and it would inclose and embrace the territory without question. It might be that there might be some discrepancy on the ground between the calls made by which a given territory would be on the inside or outside of such line; but that question does not arise in this case, because the whole survey of land on which appellant’s place was situated, and the territory where his stock was shown to have been permitted to run at large, was not of any of such disputed territory on. such line. Williams v. State, 52 Tex. Cr. R. 371, 107 S. W. 1121; Stewart v. State, 153 S. W. 1153; Jones County Judge v. Carver, 29 Tex. Civ. App. 268, 67 S. W. 780.

As stated above, article 1249, P. C., applies to the statutes prohibiting horses, cattle, etc., from running at large, and article 1241, P. C., to hogs, sheep, and goats. The court, therefore, did not err in telling the jury that the penalty for a violation of the former was a fine of not less than $5 nor more than $200, instead of telling them, under the latter article, that the fine was not less than $5, nor more than $50. The court, in his charge, required the jury to expressly find, among other things, that appellant did unlawfully, willfully, and knowingly permit his said cattle to run at large in said prohibited territory in Lavaca county before they could find him guilty. This was an additional burden on the state not required by the article under which the prosecution was had; but that was to appellant’s advantage, and not to his disadvantage..

We have not taken up in consecutive order appellant’s various assignments; but what we have said disposes of all of them adversely to him.

The judgment is affirmed.

DAVIDSON, J.

I think this case ought to be reversed, and therefore dissent. I deem it unnecessary to write further than to refer to what I have heretofore written in other eases, and also to prior decisions of the court.


source: Caselaw Access Project

author: HARPER, J. DAVIDSON, J. HARPER, J.

license: Public Domain

text:
    JAMES v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 14, 1914.
    On Motion for Rehearing, Feb. 4, 1914.)
    1. Homicide (§ 142) — Indictment — Issues and Variance — Time of Offense.
    Under an indictment charging the commission of murder on or about March 30th, proof that the crime was committed on March 29th would present no variance.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 250-259; Dec. Dig. § 142.]
    2. Statutes (§ 267) — Construction — Retroactive Operation — Procedure.
    Acts 33d Leg. c. 138, requiring that the judge furnish counsel with a copy of his charge, and that counsel before it is read to the jury present his objections in writing, distinctly specifying each ground, relating solely to procedure, applied to a trial subsequent to its enactment, though the offense was committed prior thereto ; defendant having no vested right in matters of procedure.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 350-359; Dec. Dig. § 267.]
    3. Criminad Law (§ 1056) — Appear—Necessity of Exception.
    Where no exception was reserved to the charge under Acts 33d Leg. c. 138, requiring the trial court to furnish counsel a copy of his charge, to which any objection must be made in writing before it is read to the jury, and complaint was first made in the motion for new trial, any error in failing to charge, limiting the testimony of an accessory, was not available error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2668, 2670; Dec. Dig. § 1056.]
    4. Criminad Law (§ 942) — New Triad — Newdy Discovered Evidence — Impeachment of Witness.
    Newly discovered evidence, going merely to impeachment of a witness, is not a ground for a new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2316, 2331, 2332; Dec. Dig. § 942.]
    5. Homicide (§ 308*) — Instructions — Degree.
    In the trial for murder, defendant was entitled to a charge on the degrees of murder as they existed under the law in force when the offense was committed, though between such time and the trial the degrees had'been changed by statute.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 642-647; Dec. Dig. § 308.]
    6. Homicide (§ 325) — Appear—Instructions —Degree.
    In a trial for murder committed in March, had after Acts 33d Leg. c. 116, went into effect ameliorating the penalty as to murder in the first degree, but authorizing a more severe penalty as to murder' in the second degree, where the penalty of imprisonment for life awarded by the jury was no more sévere than could have been assessed under the act for murder in the second degree, the matter of defendant’s right to a charge of murder in the first and' second degrees, under the law in effect when the. crime was committed, was not jurisdictional, and, in the absence of proper objection, could not be raised for the first time in the reviewing court.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 693; Dec. Dig. § 325.]
    On Motion for Rehearing.
    7. Criminad Law (§ 954) — New Triad — Assignment of Errors — Objection—Charge of Court.
    A complaint that the verdict is “contrary to the law” points out no error in the charge of the court.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2341, 2363-2367; Dec. Dig. § 954.]
    8. Criminad Law (§ 1038) — Appeal—Sufficiency of Objection Below.
    Defendant, who did not specifically object to the charge of the court before it was read to the jury, as required by Acts 33d Leg. c. 138, could not complain of the charge, either in the motion for a new trial or in a bill of exceptions filed after the term time, except under the conditions named in the act.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2646; Dee. Dig. § 1038.]
    Appeal from District Court, Brazoria County; Samuel J. Styles, Judge.
    Ed James was convicted of murder, and he appeals.
    Affirmed.
    Walter L. Wilson, of Brazoria, for appellant. C. E. Lane, Asst. A tty. 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 for murder, found guilty, and his punishment assessed by the jury at imprisonment for life.

The crime which he is alleged to have committed is stated- in the indictment to have been committed on or about March 30th. Appellant insists that the evidence shows the crime to have been committed on March 29th. This would be an immaterial matter, and would present no variance. Appellant was not tried until in September, 1913. .At this time the law, which provides that the judge shall furnish counsel with a copy of his charge, and counsel must at that time, before it is read to the jury, present his objections thereto in writing, distinctly specifying each ground of objection, had gone into effect; it having become the law about two months before appellant was tried.

The record discloses that appellant’s counsel was furnished a copy of the charge before it was read to the jury. Yet he at that time presented no objections to it. He contends that, as the crime was committed before this law went into effect, even though he was tried subsequent thereto, the latter law had no application to the trial, and he can still complain of the charge in his motion for a new trial. This position is not tenable. Chapter 138 of the Acts of the Thirty-Third Legislature relates solely to the procedure to be had in the trial of cases; and, even though the offense was committed prior to its enactment, yet if the trial is had subsequent to the date this chapter became the law of the land, one should be tried in accordance with its provisions, and he must, when the charge is furnished him, present his objections to the charge in writing before the same is read to the jury. Mrous v. State, 31 Tex. Cr. R. 600, 21 S. W. 764, 37 Am. St. Rep. 834. In that case it is held that laws which relate to modes of procedure only, no one can be said to have a vested right in, and the state, on grounds of public policy, may regulate at pleasure, citing Laughlin v. Com., 13 Bush (Ky.) 261. In section 674 of Sutherland’s Work on Statutory Construction, it is said: “No person can claim a vested right in any particular mode of procedure for the enforcement or defense of his rights. Where a statute deals with procedure only, prima facie it applies to all actions — those which have occurred or are pending, and future actions. If before final decision a new law as to procedure is enacted and goes into effect, it must, from that time, govern and regulate the proceedings” (citing a long list of authorities which will be found on pages 1226 and 1227 of volume 2, Second Edition). See,- also, Cooley on Constitutional Lim. (7th Ed.) p. 515; Black on Int. of Laws, § 106, p. 265. Consequently, as no exception was taken to the charge before it was read to the jury, and none taken during the progress of the trial, we cannot consider nor review those grounds in the motion for a new trial which seek to complain of the trial court’s charge. The provisions of chapter 138 of the Acts of the Thirty-Third Legislature prohibit us from so doing, unless the error should be one that is deemed in law a fundamental error.

The amended motion for a new trial sets up but three grounds. The first complains of the charge in not instructing the jury as to the law governing accomplice testimony as regards the testimony of John Green. As .hereinbefore shown, we cannot review that ground in the motion; it being first complained of in the motion for a new trial. The state did not introduce John Green in making its case originally, but rested its case on the testimony of Dr. Hampil, Bessie Spiller, and Irving Littleton. The testimony of these witnesses show that deceased was shot in the back, and Littleton swears he saw appellant fire the shots that killed deceased. Appellant by his testimony endeavored to prove that John Green fired the shots and killed deceased. The state then introduced Green, who testified that he did not do the shooting, but that appellant did do so. There is no testimony offered, either by the state or the defendant, showing or tending to show they were acting together in the matter. The state’s case is that appellant fired the shots; appellant’s case is that he did not do so, but that John Green fired the shots. The only thing that would tend to make Green an accessory is that he first said he fired the shots. He testified that he told this at appellant’s request, to give appellant a chance to escape. But he corrected this statement the next morning, and appellant was arrested. It does not appear that Green has ever been indicted for this offense, appellant alone being indicted; and, if this attempted concealment of the crime should be held to make him an accessory to the crime, the failure to so limit his testimony under the circumstances would not present reversible error, when no exception was reversed to the charge and complaint is made for the first time in the motion for a new trial under the provisions of the law hereinbefore cited.

The second ground in the motion for a new trial is that the evidence is insufficient to sustain the conviction. The testimony of Irving Littleton and Ellison Morrison would sustain the verdict, if no other witnesses had testified.

The third and only other ground in the amended motion for a new trial alleges newly discovered testimony. This testimony would only tend to impeach the witness John Green. It relates solely to remarks he made after the trial. One witness says he heard John Green say after the trial “that they were so long in calling him to go on the stand, he thought they were going to try him [John Green].” Another witness says “that after the trial he heard John Green say that when he was arrested he had paid a lawyer $150 to defend him and he expected to get all of it, or at least half of it, back; that he did not need a lawyer now.” None of this would go to show that Green was the guilty party in fact, nor would it tend to show that appellant was not guilty. It would simply go to impeach and weaken the testimony of Green, and it is no ground for a new trial. The court instructed the jury: “If you believe from the evidence that John Green shot and killed the said Ellison Flanagan, or you have a reasonable doubt as to whether or not he did, you will acquit the defendant.”

This disposes of all the grounds assigned in the trial court The term of court at which appellant was tried adjourned September 27th. Two months thereafter, on November 18th, in vacation, appellant files two papers in this case, in which he seeks, to raise the question that the court erred in not charging the jury on murder in the first degree and second degree, and in charging the jury only as to murder as defined by Chapter. 116 of the Acts of the Thirty-Third. Legislature. As this law Aid not take effect until July 1, 1913, and the offense was committed in March, it may be said he was entitled to have the court charge the jury in regard to penalty, the law in effect when he committed the offense, and define murder upon express and implied malice, and not instruct them under the law of the last Legislature. But he makes no complaint at the time the charge was delivered to him for inspection ; he makes no complaint in this respect even in the motion for a new trial, and does not seek to raise this question until two months after the term of court at which he was tried adjourned, and when the ease was pending in this court on appeal. So the question is, Is this such a matter as can be raised for the first time in this court? The new law ameliorates the penalty as to murder in the first degree as it formerly existed, but it authorizes a more severe penalty as to murder in the second degree, as it existed at the time of the commission of the offense. But the penalty assessed by the jury is no more severe than could have been assessed for murder in the second degree. Had this question been raised during the trial of the case, or reserved in an exception to the charge, so as to give the trial court an opportunity to rule thereon, we would feel inclined to sustain appellant’s contention. But those questions which can be raised for the first time in this court are such as to go to the jurisdiction of the trial court, not mere errors in procedure or in the charge, if the charge submits the offense alleged in the indictment. In our opinion this question cannot be raised for the first time in this court, for the trial court had jurisdiction of the offense; the indictment is properly drawn, and the jury was authorized by the charge to inflict a penalty of not less than five years— the minimum penalty formerly assessed for murder in the second degree. Had they not been authorized to assess this minimum penalty by the charge, we might take a different view of the matter, but the punishment authorized by the charge was the punishment authorized under the prior penalty, the minimum and maximum punishment being submitted; and, under such circumstances, it is not such error as is authorized to be raised for the first time in this court.

The judgment is affirmed.

DAVIDSON, J.

(dubitante). The opinion in this case involves very serious questions, growing out of the construction of recent acts of the Legislature. These acts are far-reaching, involving wide changes in the rules of procedure in the trial of criminal cases. Owing to the rush of work and the rapidity with which cases are being disposed of, I have not been able to give the matters involved such consideration as their gravity demands. Before agreeing to the construction sought to be placed on these statutes by my Brethren I desire to investigate more fully; therefore in this case I do not express any conclusion, but will investigate the questions, and when my conclusion is fully reached will so write. The questions involved are of too serious a nature to be decided without the fullest and maturest consideration.

On Motion for Rehearing.

HARPER, J.

Appellant has filed a motion for rehearing in this cause, contending that it has been the rule in this court “for 40 years that a person could complain of the charge of the court in a motion for a new trial,” and then proceeds to show that he has the following complaint in his motion: “Because of fact the verdict is unsupported by the evidence and contrary to law, and the court erred in entering judgment upon the verdict.” This would raise only the question of the sufficiency of the testimony to support the- verdict, and no other question; and, as shown in the original opinion, the evidence offered in behalf of the state is amply sufficient. Either appellant or John Green foully murdered the deceased, and this issue was submitted to the jury in language frequently approved by this court.

The complaint that the verdict is “contrary to the law” points out no error in the charge of the court, if error there be.

Appellant also contends that, as the court granted time in which to file bills of exception, and as he filed exceptions to the charge within the time granted, even though they were filed 52 days after court adjourned, the criticisms of the charge contained in the bills of exception should be considered, although he had not objected to the charge at the time it was given, nor in the motion for a new trial. The court, in approving these bills, says: “The charge was submitted to counsel for defendant, and no exceptions to the charge were made, and no special charge was asked.” And by reference to the motion for new trial it is seen that no complaint of the charge is there made in respect to the matter complained of, but these complaints are sought to be made for the first time 50 days after court had adjourned for the term. While it has heretofore been the rule that complaints of the charge may, for the first time, be made in the motion for a new trial, it has never been the rule that these complaints could be made after court had adjourned for the term. And it is not the law now that complaints of the charge can be made for the first time in the motion for a new trial. Under the law enacted by the Legislature at its last session, it was provided that when the charge was submitted to counsel, he must then in writing file his objections to the charge. Had this been done, then he could later prepare his bills. But as appellant filed no objections to the charge at the time it was presented to Mm, and at ■tile time it was read to the jury, he could not later complain oí it, either in the motion for a new trial nor in a bill of exceptions, filed after term time except under the conditions named in the.law. See article 743 as amended by the Acts of the Thirty-Third Legislature.

The motion for rehearing is overruled.


author: PRENDERGAST, '.P. J.

text:
    LOICANO v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 21, 1914.)
    1. Indictment and Information (§ 125) — Duplicity — -Intoxicating LiQuoks — Information.
    An information alleging that accused sold Intoxicating malt, spirituous, and vinous liquors, to wit, one bottle of beer, is not duplicitous in charging the sale of different kinds of intoxicating liquors in the same count as it specifically alleges the kind of liquor sold, and the words “spirituous and vinous” should be disregarded as surplusage.
    [Ed. Note. — Eor other cases, see Indictment .and Information, Cent. Dig. §§ 334-400; Dec. Dig. § 125.]

      2. Criminal Law (§ 1159) — Appeal—Verdicts.
    A conviction on conflicting evidence cannot be disturbed on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3074-3083; Dec. Dig. § 1159.]
    ’3. Witnesses (§ 321) — Impeaching- Own Witness — Surprise.
    In a criminal prosecution, where a witness for the state testified to facts which would ■make it doubtful whether he had procured intoxicating liquors from accused, the state, on ■a claim of surprise because the witness previously had stated he made such purchase, ■might question the witness whether he did not tell a third person that he had bought such 'liquor.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1094, 1099, 1100'; Dec. Dig. § :321.]
    4. Criminal Law (§ 408) — Prosecution-Evidence.
    In a prosecution for selling intoxicating liquor without a license, evidence that accused visited the prosecutor, and asked how much the fine would be, and requested him to make the offense “Sunday selling,” so that the penalty would be lighter, is not inadmissible as an attempt to compromise the case.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 785; Dee. Dig. § 408.]
    .5. Intoxicating Liquors (§ 154) — Offenses — Defenses.
    In a prosecution for selling intoxicating liquors without a license, proof that accused had a license to sell intoxicating liquors at .another place on the same street is no defense; the statute prohibiting a dealer in intoxicants .from carrying on his business under his license .at more than one place at the same time, and •providing for a change of the location of li•censes.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 168; Dec. Dig. § 154.]
    Appeal from Tarrant County Court; Jesse M. Brown, Judge.
    A. Loicano was convicted of selling intoxicating liquor without a license, and he appeals. Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, '.P. J.

Appellant was prosecuted, under article 612, P. C., for selling malt liquor, capable of producing intoxication, without a license, as such dealer. I-Iis punishment was fixed at a fine of $250 and one day in jail.

The complaint and information, after the formal parts, alleged that on July 27, 1913, appellant, without first having applied for and obtained a license, under the laws, as a retail malt liquor dealer, did then and there, in a certain locality in said county where local option was not in force, unlawfully sell, directly and indirectly, to Albert Mitchell “intoxicating malt [spirituous and vinous] liquors in quantities of one gallon and less, to wit, one pint bottle of beer.”

Appellant made a motion to quash the complaint and information, because they were duplicitous, in that they charge that he sold intoxicating spirituous and vinous liquors, and also intoxicating malt liquor; said charge being in one and the same count. Taking the allegation in the complaint and' information as a whole, it charged only that the liquor sold was one pint bottle of beer, which was intoxicating malt liquor. White v. State, 157 S. W. 152. Again, the words “spirituous and vinous,” in brackets above, describing the character of liquor, could and should be regarded as surplusage. Goodwin v. State, 158 S. W. 275, 276, and cases there cited.

The evidence as a whole was amply sufficient to sustain the conviction. While it is contradictory, this is for the jury, and, they having, with sufficient evidence, found him guilty, we cannot disturb the verdict.

By one bill of exceptions it is shown that, when the state’s witness Albert Mitchell, to whopi the sale of beer was alleged to have been made, was testifying for the state, without reciting it, he testified to a state of facts which would make it doubtful that he had bought the pint of beer from appellant. The county attorney thereupon asked him if it was not a fact that he had told Harve Musick that he had bought the beer from appellant. The appellant’s attorneys objected to this question. The county attorney thereupon stated to the court m that the witness had previously stated that he had bought the beer from appellant, and that the state was surprised at his testimony which was against the state, and the court thereupon, for that reason, permitted the county attorney to ask and required the witness to answer the question. He thereupon answered that he had told Mtasick he bought the beer from appellant, which conversation occurred at the defendant’s place of business at the time the officers came, and before they arrested defendant. This action of the court, under the circumstances stated, presents no error.

Mr. Ammerman, assistant county attorney, testified: “Defendant talked to me several times about his case. He came tó the county attorney’s office, and asked me how much it would take to pay the fine and settle it, and I told him that the least fine was $250, and he said that it looked like that was too much for selling a few bottles of beer, and asked me if I could not make it Sunday selling, and I told him that I could not. He asked me if I could not make it Sunday selling, so he could get out lighter, and, when I told him I could not, he asked me if I would pass it a few days till he got the money.” Appellant objected to this testimony,- because it was an effort on his part to compromise his case.

The bill is very meager. His objection that it was an effort on his part to compromise the case is a mere objection not approved as a statement of fact by the court. If we could look to the record, we would find that the testimony of the assistant county attorney was much fuller than given by this bill, and that it does not show an effort by appellant to compromise his ease so as to make the evidence inadmissible. The bill does not show that the testimony was inadmissible.

The court did not err in refusing to charge the jury to find the appellant not guilty because of the insufficiency of the evidence. The evidence was sufficient, and the court should not have charged that it was not.

The state showed that appellant, in January, 1913, took out a license as a malt liquor dealer, his business to be at 1405 Main street, in Et. Worth. Appellant himself testified that he had such license for his business at 1405 Main street; that his confectionery stand, at which place the sale is shown to have been made, was on Main street in the 1200 block. He denied making this or any other sale in his said confectionery store. The state also proved that his confectionery store was three blocks and across the street from where he had and run his saloon. He was not charged, and there was no testimony offered, or which tended to show, that he made any sale at his said saloon business place. The statute prohibits the dealer from carrying on his business under his license at more than one place at the same time, and provides that, if he desires to change the place designated in the license, he must apply to the county judge, and have the change made. The court did not err iñ refusing appellant’s charge that if he made the sale alleged, and had a license to sell, to acquit him, even if he had properly excepted to the refusal of the court, which he did not do.

The judgment is affirmed.


author: PRENDERGAST, P. J.

text:
    FERGUSON v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 21, 1914.)
    1. Intoxicating Liquors (§ 214) —Requisites and Sufficiency.
    Under Pen. Code 1911, art. 626, making it unlawful for any retail liquor dealer to permit lewd women on his premises, an information held not too general or indefinite because not giving the names of the lewd women.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 253, 254; Dec. Dig. 1 214.]
    2. Criminad Law (§§ 1095, 1102) — Statement of Facts — Time for Filing.
    Statement of facts and bills of exceptions filed more than 20 days after the adjournment of the term of court at which the trial was had will be stricken on motion.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2847; Dec. Dig. §§ 1095, 1102.]
    Appeal' from McLennan County Court; George N. Denton, Judge. .
    A. B. Ferguson, a retail liquor dealer, was convicted for permitting lewd women on his premises, 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

   PRENDERGAST, P. J.

In this case appellant was prosecuted under P. C. art. 626, for permitting lewd women on his premises; he being a retail malt liquor dealer. His punishment was fixed at a fine of $500 and six months’ imprisonment in jail. After the formal part, the complaint and information charge that in said state and county on or about March 26, 1913, appellant “who was then and there a retail malt dealer, engaged in and pursuing the occupation of selling malt liquor exclusively, capable of producing intoxication, in quantities of one gallon and less, at his place of business, situated on lot 6 block 22, of the Bell-Meade Court addition to the city of Waco, Tex., and described in his license (said license. being issued to him and one D. M. Malone jointly, as a place about 2 miles east of Waco, and about 200 yards south of the Katy Railroad tracks), he, the said A. B. Ferguson, did then and there permit lewd women on his premises, used for the purpose and under the license aforesaid, against the peace and dignity of the state.”

Said árticle of the Code is: “Ño retail liquor dealer, or retail malt dealer, shall employ, or suffer to be employed, other than a member of his family, any female as a servant, bartender, or waitress in his place of business, nor permit on said premises any dancer, singer or lewd woman; and any person violating the provisions of this article shall be deemed guilty of a misdemeanor, and, upon conviction, shall be punished by imprisonment in the county jail for not more than 12 months, or by .a fine not exceeding five hundred dollars, or both such fine and imprisonment.”

Appellant made a motion to quash the complaint and information on these grounds: They present no offense against the laws of Texas; they áre too general, vague, and indefinite; they do not allege the name or names of the lewd woman, or women, alleged to he permitted to enter his premises. The law upon which the prosecution is founded is void and unconstitutional; it makes it an offense to permit lewd women to enter a retail malt liquor dealer’s premises and does not make it an offense for any other woman to do so. The court overruled this motion. Appellant has in no way briefed the case. We think his motion was correctly overruled by the lower court.

The term of court at which the case was tried convened on May 5, and adjourned June 21, 1913. There is in the record what purports to be a statement of facts and several bills of exceptions all of which were filed more than 20 days after the adjournment of the court. The Assistant Attorney General has made a motion to strike them out because filed too late. Under , the many and uniform decisions of this court and the statute, the motion is well taken, and said documents are struck out. De Friend v. State, 153 S. W. 881; Durham v. State, 155 S. W. 222; Butler v. State, 160 S. W. 1191, decided November 19, 1913, not yet officially reported.

In the absence of a statement of facts and bills of exceptions, no question is raised that we can review.

The judgment is therefore affirmed.


author: HARPER, J.

text:
    MASON v. STATE.
    (Court Of Criminal Appeals of Texas.
    Jan. 21, 1914.)
    1. Homicide (§ 307) — 'Triait-Instructions —Murder.
    In a trial for homicide, where the issue of manslaughter was presented, an instruction that mi\rder was distinguishable from every other species of homicide by the absence of circumstances which reduced the offense to negligent homicide, or which excused or justified the homicide, was erroneous in excluding the fact that if the circumstances reduced the offense to manslaughter, it would not be murder.
    [Ed. Note. — For other cases, see 'Homicide, Cent. Dig. §§ 638-641; Dec. Dig. § 307.]
    2. Homicide (§ 300) — 1Trial—Instructions-t-Provoking DIFFICULTY.
    In a trial for murder, where the evidence for the state showed a difficulty between deceased and defendant; that defendant went home, returned armed, and approached deceased, and when deceased started to take off his cotton sack, fired the first shot, and when deceased ran, continued to shoot, and where the evidence for defendant showed that deceased had approached, taken hold of him, and threatened him-, and that they were separated, and that deceased .then said that he would get defendant before night; that when he approached deceased to straighten out the difficulty and avoid further trouble, deceased used insulting language and reached for a rock, whereupon he shot — an instruction on the issue of provocation of difficulty was proper.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    3. Homicide (§ 300) — Tbial—Instructions— Self-Defense.
    On such evidence, the submission of the issue of imperfect self-defense was proper.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    4. Homicide (§ 51) — Degrees—Manslaughter.
    Where defendant, after a difficulty with deceased, went back and made a remark calculated to provoke a renewal of the difficulty, but without any intent to kill, and where he was not justified in killing, he would be guilty of no higher offense than manslaughter.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 75; Dec. Dig. § 51.]
    5. Homicide (§ 151) — Trial — Burden of Proof — Freedom from Fault.
    In a trial for homicide growing out of defendant’s remark, provoking a renewal of a difficulty, defendant did not have the burden of showing that he went on a peaceful mission, such burden, as all other issues in a criminal case, being upon the state.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 276-278; Dec. Dig. § 151.]
    6. Homicide (§ 120) — Degree—Manslaughter.
    Where defendant was justified in firing the first shot, he was justified in continuing to shoot "as long as he believed his life was in danger, and, if he continued to shoot after it was apparent that all danger had passed, but under the influence of the passion aroused by the difficulty, he would be guilty of no higher-offense than manslaughter.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §i 175; Dec. Dig. § 120.]
    Appeal from District -Court,- Johnson County ; O. L. Lockett, Judge.
    Will Mason was convicted of murder, and he appeals.
    Reversed and remanded.
    F. E. Johnson and R. S. Phillips, both of Cleburne, for appellant. O. 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.

The court’s charge in this case is severely criticised in the motion for a new trial. In the first place the court, in defining murder, said: “Murder is distinguishable from every other species of homicide by the absence of circumstances which reduce the offense to negligent homicide, or which excuse or justify the homicide.” This definition is not the law where the issue of manslaughter is presented by the testimony. In this case the court recognized that the issue of manslaughter was in the case, and correctly so, by later submitting that offense to the jury, and the court erred in this definition of murder in excluding the fact that, if the facts and circumstances reduced the offense to manslaughter, it- would not be murder.

The court submitted the issues of provoking the difficulty and imperfect self-defense. Appellant contends those issues were not in the ease, but we cannot sustain this contention. The evidence for the state would show that appellant and deceased had a difficulty in the field; that appellant returned to his home, armed himself, returned to the field, and approached deceased; deceased, who was picking cotton, raised up, started to take off his cotton sack, when appellant fired the first shot; deceased turned and ran, when appellant continued to shoot, taking the pistol in both hands. This, it is true, would not present the issue of manslaughter, nor provoking the difficulty, but would be murder. However, appellant testified to a difficulty on the Friday night previously; that on the day of the difficulty deceased approached, and caught hold of him and said, “G-d d-n, if you have anything to say, say it now,” picked up a rock, and said, “You son of a bitch, I will fix you;” that he caught hold of deceased and tried to keep him from hitting him with a rock; that Mr. Bone came and separated them, and as he, appellant, turned to leave, deceased remarked, “You God d-n s-n of a b-h, I will get you before night;” that he went on off and got his coat where he had left it in the field ; that the pistol was in his coat all the time; that after he thought over the matter he decided to go and talk to deceased, and try to straighten up the differences between them, and avoid any further trouble; that he approached deceased with that end in view, and as he got close to deceased he remarked, “Well, Jacky, it seems that you still want to have trouble, and make trouble,” when deceased pulled off his sack, reached down to get a rock, and said. ‘You G-d d-n s-n of a b-h,” and as he raised up with the rock in his hand, he, appellant, fired, and continued to shoot until he fired four shots.

There is testimony supporting both the state’s and appellant’s contention, and some testimony that would authorize the jury to believe that appellant went back there and made the remark he says he did to provoke a renewal of the difficulty. Under such circumstances there was no error in submitting that issue to the jury, nor in instructing the jury that, if he went there, and by his acts and conduct provoked the difficulty, yet he did not do so with no intent to kill, and he was not justified in killing, under such circumstances he would be guilty of no higher grade of offense than manslaughter. But appellant complains of the charge as given that it placed the burden on appellant to prove that he went on a peaceful mission, and this criticism is well founded. The court required the jury to find as an affirmative fact that “he approached deceased with the intention and purpose of adjusting their differences in a peaceable and friendly manner,” and if the jury did not so find, his right of self-defense-•would be abridged. Thus, as in all other issues in a criminal case, the burden was upon the state to show that was not his mission, to the satisfaction of the jury, and not upon him to show that it was his mission. Under our law the presumption always favors the defendant, and if under the testimony the jury had a reasonable doubt that this' may have been true, his right of self-defense would not be abridged.

The issue was in the case that deceased abandoned the difficulty and fled after the first shot, when defendant took his pistol in both hands and continued to shoot, and -these latter shots were the fatal shots. In submitting this issue the court put the burden on defendant to show that the passion engendered by the encounter continued, before the jury would be authorized to find him guilty of manslaughter. This should not have been done. If defendant was justified in firing the first shot, he was justified in 'continuing to shoot as long as he believed his life was in danger; if he continued to shoot after it was apparent all danger to him had ended, and under the influence of the passion aroused by the difficulty, or if the jury had a reasonable doubt of that fact, he would be guilty of no higher grade of offense than manslaughter.

We do not deem it necessary to discuss the other criticisms of the charge, but, on account of the above errors,.the case is re' versed and remanded.


text:
    BOYD v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 21, 1914.)
    1. Criminal- Daw (§ 1091) — Presentation and Reservation in Lower Courts op Grounds op Review — Exceptions.
    In a prosecution for rape, defendant’s bill of exceptions to the part of the charge defining rape, merely because it was not applicable to the facts and did not correctly state the law, was too general.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2883, 2843, 2931-2933, 2943; Dec. Dig. § 1091.]
    2. Rape (§ 41) — Admissibility op Evidence —Age op Female.
    In a rape prosecution the girl was properly permitted to testify as to her age, though she did say on cross-examination that she was 14, because her mother had told her so; its weight being for the jury.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. § 60; Dec. Dig. § 41.]
    3. Criminal Law (§ 1169) — Harmless Error —Admissibility op Evidence.
    Error, if any, in permitting the girl, in a prosecution for rape," to tell and show that the Bible showed her age was harmless, where defendant himself testified that she was under 15.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. § 1169.]

      4. Criminal Law (§ 1111) — Presentation and Reservation in Lower Court of Grounds of Review.
    Where the trial court in approving defendant’s bill of exceptions qualified it, and defendant accepted it as thus qualified, he was bound thereby.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2894-2896; Dec. Dig. § .1111.]
    5. Criminal Law (§ 1059) — Appeal and Error-Bill of Exceptions — Specification of Errors.
    Where, in a rape prosecution, the evidence of the girl, the prosecuting witness, constituted 48 typewritten pages, and defendant in one bill objected to a whole mass of the testimony, without pointing out any specific error, the bill presented no error; a part of the evidence being admissible.
    [Ed. Note. — F'or. other cases, see Criminal Law, Cent. Dig. § 2671; Dec. Dig. § 1059.]
    6. Criminal Law (§ 366) — Admissibility of Evidence — Res Gestas.
    Evidence, in a prosecution for rape, of the attending circumstances held properly admitted as a part of the res geste of one particular act.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 806, 811, 814, 819, 820; Dee. Dig. § 366.]
    7. Criminal Law (§ 1091) — Appeal, and Error-Bill of Exceptions — Specifications of Errors.
    In a prosecution of defendant for rape of his daughter, defendant’s bill, which merely objected that the girl was permitted to testify that she told her mother, and did not tell her sooner because defendant threatened to kill her, presented no error.
    [Ed. Note. — Eor other eases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.]
    8. Criminal Law (§ 366) — Admissibility of Evidence — Res Gestas.
    In a prosecution of a father for the rape of his daughter, the daughter was properly permitted to testify that the acts were without her consent; it being admitted as a part of the res gestae.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 806, 811, 814, 819, 820; Dec. Dig. § 366.]
    9. Rape (§ 43) — Admissibility of Evidence.
    In a rape prosecution, evidence of physicians who examined the sexual organ of the girl was properly admitted upon the issue of penetration, the length of time intervening between the act and the examination not affecting the admissibility of the evidence, but its weight.
    [Ed Note. — For other cases, see Rape, Cent. Dig. §§ 62, 65; Dec. Dig. § 43.]
    10. Rape (§ 46) — Admissibility of Evidence.
    Where, in a prosecution of a father for the rape of his daughter, the daughter testified that it occurred about 8 o’clock in the evening, while her mother was at a neighbor’s, and defendant testified that his wife was not away from home that evening, testimony of the neighbor was admissible to rebut defendant’s testimony.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. § 54; Dec. Dig. § 46.]
    11. Criminal Law (§ 358) — Admissibility of Evidence.
    * Where, in a prosecution of a father for the rape of his daughter, the daughter testified that it occurred about 10 o’clock one morning, and defendant testified that on that morning he left home at 9 o’clock to go to a neighbor’s to help kill a hog, testimony of the neighbor was admissible in rebuttal of defendant’s testimony.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 763; Dec. Dig. § 358.]
    12. Criminal Law (§ 1091) — Appeaj>-Bill of Exceptions — Specification of Errors.
    Where the record contained several requests by defendant, none of which were numbered, defendant’s bill, merely complaining of the court’s refusal to give Ms request, without otherwise identifying it, was too general.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.]
    13. Rape (§ 59) — Instructions—Conformity to Evidence.
    In a rape prosecution, where the evidence showed penetration, it was not error to refuse defendant’s request, requiring a finding whether there was an attempt to commit rape.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 88-100: Dec. Dig. § 59.]
    14. Criminal Law (§ 087) — Trial—Reception of Evidence.
    It was not error to refuse to permit defendant, in a prosecution for rape, to call Ms wife to testify in his behalf, after both sides had rested and the state admitted all that defendant stated that he desired to prove by her.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1621, 1622, 1625; Dec. Dig. I 087.]
    Appeal from District Court, Jefferson County; John M. Conley, Judge.
    George Boyd was convicted of rape, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

      Frr 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

   PRENDERGAST, P. J.

The indictment properly charges rape of a girl under 15 years of age. Her name was Louisa Boyd, and she is the daughter of appellant. The offense is alleged to have been committed on December 24,1912. The jury found him guilty, and assessed his punishement at seven years’ confinement in the penitentiary.

The evidence is amply sufficient to sustain the conviction. The girl testified that the first act was committed about May 27, 1912, and at various times up to and including about January 3, 1913. The prosecuting officer elected, and the court by the charge followed his election, submitting only the offense on December 24, 1912, as the indictment so charged. Appellant himself denied intercourse with his daughter at any time. Under this state of fact this court cannot disturb the verdict.

Appellant’s first bill complains of this portion of a paragraph of the court’s charge: “To constitute the crime of rape, it is necessary that penetration be shown, but, if penetration is shown to have actually taken place as a matter of fact, the degree of penetration is immaterial. ‘Penetration’ as herein used means the penetration of the female organ of the female with the male organ, or penis, of the male.” The preceding part of the paragraph is: “Rape is the carnal knowledge of a female under the age of 15 years other than the wife of the person having such carnal knowledge, with or without her consent, and with or without the use of force, threats, or fraud.” His exception to this is that it was not applicable to the facts, and did not correctly present the law in the case, and was a charge upon the weight of the evidence. This complaint is entirely too general, and points out no specific error. This part of the charge substantially, if, not literally, follows the statute and the many decisions of this court.

The girl was permitted to testify that she was 14 years old. On cross-examination she said she was 14 because her mother had told her so. This was admissible. Its weight was for the jury.

By another bill he complains that the girl was permitted to tell and show that the Bible showed her age, she showing that the old Bible in which her age was first written down was so torn up and part of it lost, and that at her mother’s instance and direction she had written this in another Bible. In approving appellant’s bill to this evidence the court qualified it by stating there is no controversy about her age, and her father, the defendant, testified that she was under 15. Even if there had been any error in permitting her to testify about the Bible and what it contained and how her age came to be written therein, it is all cured or rendered harmless by the fact that the appellant himself swore that she was under 15 years of age.

By another bill appellant complains that the girl was permitted to testify as to various acts of mistreatment by appellant of her and her mother during the time practically from when he first began having sexual intercouse with her up to its conclusion. The court, in allowing the bill, stated: “The evidence complained of does not relate to segregated occurrences, but that it all in some way is connected up with and leads to each of the several acts of sexual intercourse between the defendant and prosecuting witness, and is therefore a part of the res gestae. This evidence was admitted under the rule announced in the Battles Case, 140 S. W. 783.” Appellant accepted this bill as qualified, and is bound thereby. The testimony of this girl makes about 48 typewritten pages. In addition, the appellant himself introduced 31 typewritten pages of her testimony, taken down in an examining trial when appellant was first arrested on this charge. Even if some isolated part of this testimony had not been admissible, the appellant did not object to that specifically, but objects to a whole mass of such matter in one bill. Unquestionably, even to take the bill alone, without any qualification, a part of such testimony was admissible. In such case the bill presents no error. Ortiz v. State, 151 S. W. 1057; Pinkerton v. State, 160 S. W. 92, and authorities cited in both of said cases; 1 Thompson on Trials (2d Ed.) § 696. This bill presents no error.

By another bill, without any statement of the connection in which it was introduced, or without in any other way stating the status of the case on the evidence, appellant objected to this much of said girl’s testimony, viz.: “When I started to cry, and he stopped trying to penetrate me, and he finished between my legs. I picked up my drawers and wiped myself on them and showed them to mamma when she come in.” The court, in approving the bill, does so with this qualification: “The court did not allow any evidence of the conversation between the mother and the daughter on this subject. The drawers were not introduced in evidence. The evidence complained of was a part of the res gestee of that particular act.” This bill presents no error.

Another bill, without any statement as to the status of the case or testimony, or the connection in which used in any way, complains that the girl said she told her mother July 26, 1912. When asked why she did not tell her mother sooner she replied because he (appellant) sáid if she told her and he found it out, he would kill them both, and she thought that if she told her mother, her mother might tell him, and he further told her, even if her mother did not tell him; he would know.it anyhow. Warren v. State, 54 Tex. Cr. R. 444, 114 S. W. 380. This bill presents no error.

The court did not err in permitting the girl to testify that the acts of intercourse with her by her father were without her consent; the court explaining that her testimony was admitted as a part of the res gestee.

By some three bills of exceptions appellant objected to the testimony of the physicians who examined the private parts of the girl and testified to the condition they found it. The bills do not state when this examination occurred. If we could go to the record otherwise it would show that the case was tried in March, 1913. The examination, of course, was made before the trial. The court, in allowing these bills, explained them by stating that the physical examination of the girl showed that the hymen was intact on the day of the examination, and that their evidence was pertinent to the issue of penetration. We think all this testimony, therefore, was admissible. The length of time between the alleged act and the physical examination by the doctors would go to the weight and not the admissibility of the evidence. Smith v. State, 63 Tex. Cr. R. 185, 140 S. W. 1096; Gonzales v. State, 32 Tex. Cr. R. 611, 25 S. W. 781; Pless v. State, 23 Tex. App. 73, 3 S. W. 576.

By another bill it is shown that the girl had testified her mother had gone to Mrs. Spates at the time her father was committing a rape- upon her person on December 24, 1912. The appellant complains that the court permitted Mrs. Spates, a state’s witness, to testify that appellant’s wife had visited her house on said date between 8 and 9 o’clock. The court, in approving the bill, stated that appellant had testified, in substance, that his wife had not left home that morning between 8 and 9 o’clock, so far as he knew, and that the evidence complained of was in rebuttal of his testimony. Under the circumstances this evidence was admissible.

By another bill it is shown that the girl had testified to one act by appellant on her at some date at about 10 o’clock. He complained that the court permitted the witness Elkin, who testified that on that date he killed a hog, and that appellant never got there until between 10 and 11 o’clock, or a quarter after 11 that morning. The court, in qualifying the bill, states that appellant had testified that he left the house with his wife about 9 o’clock that morning to go to this neighbor’s to kill a hog, and could not therefore have been at home to commit the alleged rape on his daughter at the hour stated by her, and he admitted this testimony of Elkin in rebuttal of his testimony. This testimony was correctly admitted.

By another bill appellant merely complains that the court refused to give his special charge No. 4, to which he excepted. There are several charges requested by appellant shown in the record, none of them numbered. Charge No. 4 is not-shown. The bill does not state what it was, or otherwise identify it. In his motion for new trial the only reference to this matter is stated in the sixth ground of the motion to be: “The court erred in refusing to give in his charge to the jury the requested special charge No. 4 by the defendant.” This, of course, is too general to point out any matter for review. However, the court’s charge was full .and complete, and the court should not have given any of his special charges. The same character of bill is made to the refusal of the court to give his special charge No. 5, and the same kind of reference made thereto in his motion for new trial. Neither of these matters present any error.

By another bill appellant complains that the court did not submit to the jury for a finding whether or not he attempted to rape the girl. In qualifying the bill on that subject the judge said he did not agree with appellant’s conclusion as to the delinquency of the court on the point, and says: “The evidence did not justify a charge on an attempt to commit the offense of rape. The act of December 24, 1912, upon which the state relied, for a conviction, showed penetration, and therefore, the offense of rape.” We think the judge is correct.

The only other question necessary to refer to or decide is shown by appellant’s sixteenth bill of exceptions to this effect: That appellant offered to introduce his wife Mary Boyd. The bill says, “to give testimony in his behalf and not against him, and the court would not permit said witness to be put upon the stand,” and that he proposed to ask her, “Did you ever see George Boyd and Louisa Boyd trying to have intercourse together?” And that the witness would have answered, “No,” and that he desired the right to interrogate her generally upon any matters, but the court refused to put her on the stand, to which he objected. The above is the substance in full of his bill. The court qualified it as follows: “Both sides of the case rested before the noon hour of adjournment, and had agreed upon the time to be consumed in argument. When the court convened for the afternoon session, counsel for defendant stated to the court that he desired to call the wife of the defendant, Mary Boyd, as a witness. The court replied that the wife, Mary Boyd, had testified in the habeas corpus proceeding, and that all of her testimony was against the defendant, and that such testimony of the wife was not admissible even though elicited by the defendant, and inquired of counsel for defendant what particular evidence he wanted from the wife. He replied that he wanted to prove by her that she, the wife, did. not see the defendant and Louisa Boyd, the prosecuting witness, trying to have sexual intercourse. The court then called the county attorney over to the bench, and after a conference it was agreed that the jury be told that it. was admitted that the witness Mary Boyd, defendant’s wife, if placed on the stand, would testify that she at no time saw the defendant, George Boyd, and the prosecuting witness, Louisa Boyd, having sexual intercourse, or attempting to have such sexual intercourse, and that such evidence was true, and the jury was so instructed by the court. After this agreement, counsel for defendant manifested some dissatisfaction, and stated that he might want to ask the witness other questions upon any matters, whereupon the court inquired the nature of such other evidence desired, and, counsel refusing to divulge it, the court then refused to let the case be reopened, and directed the argument to proceed. With this explanation, I approve this bill and order it filed as a part of the record in this cause.” This bill was accepted by appellant as thus qualified, and he is bound thereby. As qualified the bill clearly shows no error.

The judgment is affirmed.


author: DAVIDSON, J.

text:
    HUMPHRIES v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 21, 1914.)
    1. Criminal Law (§ 916) — New Trial — Objection at Trial — Necessity.
    Where accused did not move for a continuance so as to enable her to prepare for trial, she cannot complain in the motion for new trial that she was not prepared for trial.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2159, 2160; Dec. Dig. § 916.]
    2. Criminal Law (§ 1090) — Appeal — Bill op Exceptions.
    Error in admitting evidence that one of accused’s witnesses had been indicted for bank robbery, etc., which was merely made a ground of the motion for new trial, and not verified by a bill of exceptions, cannot be considered on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; - Dec. Dig. § 1090.]
    3. Criminal Law (§ 1144) — Appeal-Statement op Fact — Necessity.
    In absence of a statement of facts, it is presumed that the verdict is sufficiently supported by the evidence.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2736-2764, 2766-2771, 2774-2781,2901, 3016-3037; Dec. Dig. § 1144.]
    Appeal from Wichita County Court; C. B. Felder, Judge.
    Rose Humphries was convicted of carrying a pistol, 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

   DAVIDSON, J.

Appellant was convicted for carrying a pistol; her punishment being assessed at a fine of $100.

The record contains neither a statement of facts nor bills of exception. The motion for new trial alleges that the attorney who represented her during the trial was employed only a few minutes before the state had announced ready; in other words, by reason of this, she went into trial unprepared. There was no motion made to continue the case until defendant could get ready, or two days claimed in which to prepare for trial, if she was entitled to it. This complaint comes only in the motion for new trial. This is too late.

The second ground of the motion, is that the court committed error calculated to injure the rights of defendant, by permitting the state’s attorney to prove by the defendant’s witness Kid Humphries that he had been indicted for bank robbery and other offenses. This is simply made a ground of the motion for new trial, and is not verified by bill of exceptions.

The other ground relates to the sufficiency of the testimony. That is not in the record. In the absence of the facts, the presumption obtains that the verdict of the jury is correct.

The judgment is affirmed.


text:
    HUGHES v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 21, 1914.)
    1. Criminal Law (§ 1097*) — Appeal—Statement oe Facts.
    In absence of a statement of facts, a ground of the motion for new trial, based on the insufficiency of the evidence, cannot be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2862, 2864, 2926, 2934, 2938, 2939, 2941, 2942, 2947; Dec. Dig. 8 1097.*]
    2. Criminal Law (§ 1097*) — Appeal—Statement oe Facts.
    In the absence of a statement of facts, the Court of Criminal Appeals cannot determine whether it was error to refuse a requested instruction, in a prosecution for keeping a disorderly house, that, if the jury had a reasonable doubt as to whether a certain person other than defendant was a lessee of the property, they should acquit.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig-. §§ 2862, 2864, 2926, 2934, 2938, 2939, 2941, 2942, 2947; Dec. Dig. § 1097.*]
    Appeal from Wichita County Court; C. B. Felder, Judge.
    Florence Hughes was convicted of keeping a disorderly house, and appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of keeping a disorderly house. There are no bills of exception with this record, nor does it contain a statement of facts.

The first and second grounds of the motion for new trial are based on the alleged insufficiency of the evidence. The third ground is based on the alleged refusal of the court to give requested instruction No. 1, to the effect, if they had a reasonable doubt as to whether Bob Martin was the tenant and lessee of the property in question during the time alleged, to acquit defendant. In the absence of the statement of facts, we are unable to say whether this was applicable to the case or not.

The judgment is affirmed.


text:
    WALKER v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 21, 1914.)
    1. Intoxicating Liquors (§ 236) — Local Option — Publication.
    In a prosecution for violating the local option law, testimony by a witness, who was county judge at the time of the election, that it was his impression that the order declaring the result had been published, when not based on any independent recollection of making such order or of seeing the order as published, but merely on the supposition that he had performed his duty, is insufficient to establish the publication, which was a condition precedent to the going into effect of the law.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 300-322; Dec. Dig. § 236.]

      2. Witnesses (§ 318) — Corroboration of Unimpeached Witness. '
    In a prosecution for violating the local option law, where the prosecuting witnéss, who testified to the unlawful sale, was not impeached by proof of contradictory statements, evidence of his statements to third persons that he had bought alcohol from accused was inadmissible.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1084-1086; Dec. Dig. § 318.]
    3: Criminal Law (§ 1169) — Appeai>—Harmless Error.
    In a prosecution for violating the local option law, the admission of statements of the prosecuting witness in conformity with his evidence, there being no impeachment, but only contradiction by accused as to the sale, was reversible error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. § 1169.]
    4. Intoxicating Liquors (§ 35) — Local Option-Declaration of Result.
    Under the statute providing that, after a local option election, the county commissioners’ court shall meet on or after the eleventh day after the election and count the votes and declare the result, the declaration of the result at a meeting only nine days after the election is wholly void.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 42; Dec. Dig. § 35.]
    Appeal from Shackelford County Court; J. A. King, Judge.
    Paul Walker was convicted of violating the local option law, 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

   DAVIDSON, J.

This conviction was for violating the local option law.

The information charges that local option was in vogue in justice precinct No. 3 of Shackelford county. It is alleged that the evidence does not show publication as required by the statute either in a newspaper or in some manner putting the law into operation. We find upon inspection of the facts that the evidence is not sufficient to show that publication was made. The witness Morris testified he was county judge of Shackelford county at the time of the election, and it was his impression that the order declaring the result had been published, but he says he so testified because it was his duty as county judge "to have said order published, but that he had no recollection of ever having published the order, or ever having seen it in a paper, or seen a paper with the order published in it. This is the evidence in regard to this matter, and it is not sufficient to show publication of the order as required by statute. It is also shown, however, there was a newspaper office in that precinct, but the files had been burned, and that there was no order on the minutes of the commissioners’ court showing the publication of the order or designating any paper in which it should be published. There was no attempt to. prove further than this that the order had ever been pub-1 lished either in a newspaper or by posting notices. Before the law becomes operative, the publication must be made.

Rich, the alleged purchaser, testified that he bought on the 1st of July, from defendant, a bottle ■ of alcohol. The defendant denies this, testifying that he never sold Rich any alcohol, or any other intoxicants, and did not see him on the day mentioned. He is corroborated by other witnesses.

There are two bills of exception in the record, one reserved to the testimony of G. B. Kirkman, and the other to the testimony of Wallace Kirkman, practically the same. These bills of exception. show that after Rich testified appellant had sold him the intoxicating liquors, and defendant had testified that he had. not, he then introduced the two Kirkmans and permitted them to testify, over various and sundry objections, that Rich was at Kirkman’s house on Sunday morning, about the time of the sale, and had a quart of alcohol which he (Rich) said he had bought from defendant in Moran on Saturday, the day before. This testimony was not admissible. The other Kirkman testifies to the same matter. There was no attempt to impeach Rich by showing he had made contradictory statements. The matter stood before the jury on contradiction squarely put between Rich and the defendant as to the sale. This did not authorize the corroboration of Rich by his own statement to the two Kirkmans that he had bought the alcohol, which they say they saw him with, from appellant the day before. This was reversible error.

There is another question in the case: The record shows the election was held on 30th of November, 1907. The result of the election was declared by the commissioners’ court on 9th of December following. Error is assigned upon this. This error is well taken. The statute provides that the county commissioners’ court shall meet on or after the eleventh day after the election and count the votes and declare the result. The commissioners’ court in this particular instance met on the ninth day and declared the result. This they had no authority to do. This is the first time this question has come before the court, so far as the writer has béen able to ascertain. However, it is well settled by the authorities that where the commissioners’ court order the election earlier than 15 days after making the order, or later than 30 days thereafter, it renders the election held under such order absolutely void. The commissioners’ court can only order a local option election as authorized by the statute. The statute requires that they shall order the election not less than 15 days nor more than 30 days after entry of the ■ order, and if they order it within 15 days or before the 15 days, or after the 30 days, the election would be a nullity. In the' instant case the court met on the ninth day and declared the result, whereas the statute only authorizes them to act not earlier than the eleventh day. We are of opinion that this action of the court was without authority of law, and they had no authority to meet and declare the result on that day, and their action was ultra vires and void. This may not render the election void. The result was not legally ascertained, and the commissioners’ court can only act under the authority of the statute.

The judgment is reversed, and- the cause is remanded.


text:
    COBB v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 14, 1914.)
    Intoxicating Liqtfobs (§ 205) — 'Wbongful Sale — Local Option.
    Since the act of 1909 (Acts 31st Leg. 1st Called Sess., e. 35), making a sale of intoxicating liquors in a local option district a felony, did not take effect until July 10th of that year, it would be presumed, in the absence of a subsequent election, that the law in force on July 1, 1909, and prior thereto, was still in force, and an indictment alleging that a prohibition election was held anterior to July 1, 1909, and in accordance with the laws of the state, sufficiently showed that the local option law was in force at and prior to July 1, 1909, and was therefore sufficient as to the date.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 225; Dee. Dig. § 205.]
    Appeal from Ellis County Court; J. C. Lumpkins, Judge.
    Joe Cobh was convicted of selling liquor in a local option district, and he appeals. Af-
    firmed.
    C. A. Pippin, of Dallas, and Jno. H. Sharp, of Ennis, .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

   DAVIDSON, J.

The indictment alleges that a prohibition election was held “anterior and prior to July 1, 1909, and in accordance with the laws of said state,” etc. The contention of appellant is that the indictment is defective, in that it does not show that the court had jurisdiction of the offense attempted to be charged, because the court judicially knows that the 31st Legislature passed a law mailing the sale of liquor in local option territory a felony (Laws 1909, 1st Called Sess., c. 35), and that said law does not apply to counties or subdivisions thereof, unless a local option election in said county or subdivision thereof was held subsequent to the passage of said law, and the court does not know judicially when the local option election alleged to have been held in this indictment was held, if held at all, and the court judicially knows that, unless said election was held prior to the passage of said law, the court had no jurisdiction, because there is no allegation in said indictment as to when said election was held. An inspection of the indictment shows it alleges that the election was held prior to July 1, 1999. Under this allegation, the party would subject himself, to prosecution under the penalty in force under and by virtue of the law at the time said election was held, and, if there was no subsequent election, he would be punishable, if punishable at all, under and by virtue of the law that was in force at the time the sale was made. An inspection of the Acts of 1909 will show that the felony statute did not go into effect until some time in July, 1909. The called session of the Legislature enacting the felony punishment adjourned on the 11th day of “April, the act taking effect 90 days after adjournment. Therefore the conclusion, in the absence of a subsequent' election, is that the law in force on July 1, 1909, and prior thereto is still in force. In order to get away from this proposition, it should be shown there had been a subsequent election, by which the election held prior to the 1st of July was nullified. We think, therefore, that the allegation in the indictment is sufficient to show that the law was in effect at the time and prior to July 1, 1909, and, going to the statement of facts, we find that it is admitted that the election was then in effect and is still in effect. We are of opinion that the indictment is sufficient as to the date.

The evidence in the case is seriously in conflict. The state’s case shows the sale of the whisky by two witnesses; that for the appellant is equally as positive that it did not occur.. Where the evidence is in this condition, this court will not be authorized to set aside the conviction.

The judgment is affirmed.


text:
    MASSIE v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 28, 1914.)
    Cbimínal Law (§ 1167*) — Appeal—Indictment — Counts—Motion to Quash.
    Denial of a motion to quash certain counts of an indictment, which the court did not submit to the jury, is harmless.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3101, 3103-3106; Dec. Dig. § 1167.*]
    Appeal from Criminal District Court, Dallas County; Bobt. B. Seay, Judge.
    W. A. Massie was convicted of forgery, and he appeals.
    Affirmed.
    O. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

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

No statement of facts or bills of exceptions accompany the record.' The indictment contains a number of counts, but, as the court submitted only the first count in the indictment, the action of the court in overruling the motion to quash the other counts in the indictment need not be considered. There was no motion to quash the count which was by the court submitted to the jury.

The judgment is affirmed.


text:
    KAUFMAN v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 14, 1914.
    Rehearing Denied Feb. 11, 1914.)
    Criminal Law (§§ 1092, 1099) — Appeal — Bill op Exceptions — Signing.
    The judge who actually tried the case is the judge who must sign the statement of facts and bills of exception as required by Rev. Civ. St. 1911, art. 2076; a bystander’s bill being necessary if the bill of exceptions cannot be signed and approved by the judge who tried the ease.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829. 2834^-2861, 2866-2880, 2919; Dec. Dig. §§ 1092, 1099.]
    Appeal from Criminal District Court, Dallas County; Barry Miller and W. L. Crawford, Jr., Judges.
    Charley Kaufman was convicted of swindling, and appeals.
    Affirmed.
    M. T. Lively, of Dallas, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was tried and convicted of swindling, and his punishment assessed at three years’ confinement in the penitentiary.

The case was tried and appellant convicted on the 20th day of January, 1913. His application for a new trial was. overruled on February 1st. The record discloses that Hon. Barry Miller was the judge before whom appellant was tried; that subsequent to this trial and overruling of the motion for a new trial Judge Miller, on February 28th, resigned, and Judge W. L. Crawford was appointed judge of the criminal district court No. 2 of Dallas county. Judge Crawford 'qualified on March 1st, or just one month after appellant’s motion for a new trial had been overruled. The statement of facts and bills of exception were presented to and approved by Judge Crawford. They were not presented to nor approved by Judge Miller, who tried the case. The Assistant Attorney General moves to strike out the statement of facts and bills of exception. The following affidavit of Judge Miller accompanies the record; “That my name is Barry Miller. I was judge of criminal district court No. 2, Dallas county, Texas, from the day of its creation up to and inclusive of February 28, 1913. That on February 28, 1913, I having theretofore tendered my resignation to the Governor of Texas, effective on that date, and he having accepted same, I finished my term of office on that day. X was in the city of Dallas, Dallas county, Texas, practically all the time from that day until the present time. That I did not sign the statement of facts nor bills of exception in the above styled and numbered cause. That neither the bills of exception or statement of facts were ever presented to me to be signed in this case. I was the judge of criminal district court No. 2 of Dallas county, Texas, at the time this case was tried and the defendant, Charley Kaufman, was convicted. That I was the judge who overruled his motion for a new trial.”

We had this question before us in the case of Richardson v. State, 158 S. W. 517, and there held that the statement of facts and bills of exception must be signed and approved by the judge who tried the case; that this was statutory in this state. Article 2076, Rev. Stats. 1911. For a full discussion of this question, see that case. Not only is this the rule under the statute in this state, but this seems to be the prevailing rule even in the absence of statutory provisions. In Thompson on Trials, § 214, it is held that the judge who presided at the trial must sign and approve the bills of exception, and no other judge is authorized to do so; that, if the approval of the judge who tried the case for any reason cannot be obtained, then they must be proven up by bystanders, citing a number of cases.

There is no question in the motion for a new trial we can review in the absence of a statement of facts and bills of exception, and the judgment is therefore affirmed.


text:
    KAUFMAN v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 14, 1914.
    Rehearing Denied Feb. 11, 1914.)
    Appeal from Criminal District Court, Dallas County; Barry Miller and W. L. Crawford, Jr., Judges.
    Charley Kaufman was convicted of an offense, and appeals.
    Affirmed.
    M. T. Lively, of Dallas, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

The questions in this case are the same as those in the case of Kaufman v. State (No. 2784) supra, this day decided. The bills of exception and statement of facts are in the same condition. On the authority of that case this judgment is affirmed.


text:
    PENA v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 28, 1914.)
    Criminal Law (§ 1099*) — Appeal — Statement ox Facts — Filing—Time.
    A statement of facts filed by accused more than 20 days after adjournment cannot be considered on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.*]
    Appeal from Wharton County Court; J. R. Bowen, Judge.
    Francisco Pena was convicted of aggravated assault, and he appeals.
    Affirmed.

      H. A. Cline, of Wharton, for appellant. O. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

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

There is in the record what purports to be a statement of facts, but it was filed more than 20 days after the adjournment of the court. Upon motion of the Assistant Attorney General it is struck out and not considered. De Friend v. State, 153 S. W. 881; Durham v. State, 155 S. W. 222; Butler v. State, 160 S. W. 1191. In the absence of a statement of facts, no question is raised which can be considered.

The judgment is affirmed.