author: HABPEB, J.

text:
    CHEESEBOURGE v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 19, 1913.
    On Motion for Rehearing, June 4, 1913.)
    1. Criminal Law (§ 1105) — Appeal — Transcript.
    A paper not certified or verified as part of the transcript in the criminal case cannot be considered on appeal.
    [Ed. Note. — For other cases, see Criminal iio5>]Cent‘ Dig‘ 2887~2889; Dee- DiS- §1105.]
    2. Forgery (§ 29) — Indictment — Supfi-ciency.
    In a prosecution for forgery, where the instrument on its face was a negotiable one imparting a pecuniary obligation, it was unnecessary for the indictment to contain any explanatory averments.
    [Ed. Note. — For other cases, see Forgery, Cent. Big. §§, 77-81; Dee. Dig. §> 29.]
    3. Criminal Law (§ 1167) — Appeal—Harmless Error.
    In a prosecution for forgery, where the second count of the indictment charged the passing of a forged instrument, the impropriety of the court’s refusal to sustain a motion to quash was harmless, where that count was not submitted to the jury, and all the evidence introduced was admissible under the first count.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3101, 3103-3106; Dec. Dig. 1167.*]
    4. Criminal Law (§ 1091) — Appeal—Bills op Exception.
    In a prosecution for forging a money order, a bill of exception reserved to the introduction of a money order, which was objected to on the ground that the verbiage did not correspond with that charged in the indictment, is insufficient for the bill should have referred to the variance and specified wherein it existed.
    [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.]
    5. Criminal Law (§• 444) — Evidence—Admissibility.
    In a prosecution for forging an express order, the express agent may testify as to entries made by his assistant where they were kept under his direction, and instruction.
    [Ed. Note. — For other cases, - see Criminal Law, Cent. Dig. § 1028; Dec. Dig. §, 444.]
    6. Criminal Law (§ 1169) — Appeal—Harmless Error.
    In a prosecution for forgex'y, where the party who made certain entries in an express book testified to the making, the admission of testimony by another as to such entries was harmless even if erroneous.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §| 754, 8088, 3130, 3137-3143; Dec. Dig. § 1169.]
    7. Indictment and Information (§ 79)— Sufficiency.
    Bad or awkward writing or spelling will not invalidate an otherwise good complaint or indictment.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§, 209-214; Dec. Dig. § 79.]
    8. Forgery (§ 12) — Apparent Legal Efficacy of Instrument.
    In a prosecution for forging an express money order, which recited on its face that any alteration, defacement, or mutilation rendered the order void it is no defense to show that the written word of the amount of the order was so blurred and smeared as to be illegible, where it appeared that the amount of the order as expressed in numerals was clear, for bad writing or bad spelling will not vitiate an instrument.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 28-47; Dec. Dig. § 12.]
    On Motion for Behearing.
    9. Criminal Law (§ 1030) — Appeal—Presentation of Grounds of Beview in Court Below.
    On appeal from a conviction, only those objections made in the court below can be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §,§ 2619-2621, 2632, 3653: Dee. Dig. § 1030.]
    Appeal from District Court; Busk County; Chas. L. Brachfield, Special Judge.
    Leo Cheesebourge was convicted of forgery, and he appeals.
    Affirmed.
    Futch & Tipps, of Henderson, for appellant. C. E. Lane, Asst. Atty.- Gen., for the State.

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

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

   HABPEB, J.

In this case appellant was prosecuted and convicted of the offense of forgery, and his punishment assessed at two years’ confinement in the state penitentiary.

As appellant’s brief is apparently based almost wholly on the theory that we will consider a paper which is attached to the front page of the transcript, but not embodied in nor made a part thereof, we will state the grounds upon which we cannot consider this paper for any purpose. It may be, as contended in the brief, that it is the original money order introduced in evidence, but, if so, it is not certified to nor verified in the way the law requires to entitle such paper t.o be considered by us. In the case of Carroll v. State, 24 Tex. App. 314, 6 S. W. 42, this court said: “We find attached to 'the transcript what purports to be the original indictment in the case, upon which is indorsed in pencil writing what purports to be a verdict, and, if authorized to do so, we might presume that said paper is the original indictment and verdict in this case, ordered by the trial court to be sent to this court. But said paper is not certified to by the clerk; * * * is in no manner identified as the original indictment and verdict herein. We are not authorized to consider said paper as a part of the record before us; it being in no way authenticated.” So in this case, the paper being in no way authenticated, it cannot be considered for any purpose. See, also, Malton v. State, 29 Tex. App. 529, 16 S. W. 423; Rodgers v. State, 28 S. W. 948; Brewer v. State, 32 Tex. Cr. B. 77, 22 S. W. 41, 40 Am. St. Rep. 760; Kennedy v. State, 33 Tex. Cr. R. 189, 26 S. W. 78.

The indictment contains two counts; the first charging forgery, and the second passing a forged instrument. The first count is drawn in exact terms of the form set out in White’s Ann. Penal Code, § 882, and which •has been frequently approved by this court. See authorities cited in White’s Code under article 530. The instrume)nt on its face being a negotiable instrument, and imparting a pecuniary obligation, it was unnecessary for the indictment to contain any explanatory averments. Where an instrument is an ordinary commercial instrument, imparting an obligation on its face, no extrinsic averments are necessary. Reeseman v. State, 59 Tex. Cr. B. 430, 128 S. W. 1128; Reeves v. State, 51 Tex. Cr. B. 604, 103 S. W. 894.

As to the second count, this was not submitted to the jury, consequently it need not be considered. However, appellant insists that as the court did not quash the second count when he made this motion, but waited until the evidence was closed, this was injurious to him. If any evidence had been admitted not admissible on the count charging forgery, this might present cause for complaint; but, as the evidence introduced would be admissible on the count charging forgery, no error is presented.

There are a number of bills of exception reserved to the testimony of J. I. Heard, among which is (1) that he was permitted lo testify that it was not his signature to the money order introduced in evidence and shown him, which was objected to on the ground that the “verbiage of the money order does not correspond with that charged in the bill of indictment.” The only evidence of any money order offered in evidence is that copied in the statement of facts, and that corresponds with the money order alleged in the indictment; consequently, if we turn to the statement of facts, we hold that the objection is not well taken. But the bill is insufficient if, as contended, the “verbiage did not ■ correspond”; the bill should have referred to the variance and named wherein the variance existed. This it does not do.

It was entirely permissible for this witness to testify that the entries in the express book were made by J. O. Edge. He was the agent; Edge was working' under him, and he knew his handwriting. It was also permissible for this witness to testify that this book was correctly kept. While the entries were made by Edge, yet it was done under his direction and under his instruction.

But if not permissible for him to so testify, J. O. Edge, the person who made the entries, also testified, and testified to the same facts, and the error, if error it be, would be harmless. Taking into consideration the testimony of Heard, Edge, and Howard, all the testimony in regard to a shipment of liquor being received at Overton, Tex., from W. E. Hale, addressed to appellant, and that he signed for and received same, was properly admitted in evidence, as was also the book of the express company containing this entry.

Appellant’s bill of exceptions No. 8 reads as follows: “Be it remembered that upon the trial of the above styled and numbered cause that, while the witness J. I. Heard was testifying for the state, the state through its attorney offered in evidence express money order series R No. 634834, which said testimony was at the time objected to by the defendant because the money order offered in evidence was not a copy of the one set out in the bill of indictment, and that the allegations set out in the bill of indictment and that offered in evidence do not correspond, it is written in the order offered in evidence and is charged that it was five in the bill of indictment. Court overruled the objection of defendant, to which action of the court the defendant then and there reserved his bill of exceptions and here now tenders same and asks that it be ordered filed and made a part of the record in this ease.” It is thus seen the bill does not disclose that the money order offered in evidence is not a copy of the one set out in the indictment, nor, if there is a variance, in what respect the order offered in evidence varied from the one set out in the indictment. AVhile not authorized to do so, yet if we go to the statement of facts, the money -order copied in the statement of facts, and that copied in the indictment are identical. Bills of exception of this character are too incomplete to present any question.

Again, in bill No. 9 it is complained that J. O. Edge was permitted to testify that he did not sign the money order offered in evidence, and that it was J. I. Heard’s signature to the order, on the ground that there is a variance between the order offered in evidence and the one copied in the indictment; but the order is not copied in the bill, nol-is it stated in what the variance, if any, consisted.

In the next bill it is complained that Mr. Crim was permitted to testify, by comparison with the proven signature of appellant and the name Jim Green written in the money order, that in his opinion both were written by the same person. This witness qualified as an expert, as shown by the evidence, and again it is not shown wherein the money order offered in evidence varied from the one in the indictment, if there was a variance. Virtually all these objections were based on the fact that there was a variance in the money order offered in evidence and the one set out in the indictment, but in none of the bills is the instrument offered in evidence copied, nor its contents stated, nor a suggestion made as to in what respect, if any, it varied, and, as before stated, the only place that the instrument offered in evidence is copied in the record is in the statement of facts, and if we go to the statement of facts, the one that is there copied, stated to be the one offered in evidence, is an exact copy of the instrument alleged in the indictment. None of the bills point out the error in admitting the money order in evidence, if any there be. The bare statement that a variance existed, without stating wherein there was a variance, presents no question for review. Quintana v. State, 29 Tex. App. 401, 16 S. W. 258, 25 Am. St. Rep. 730; Davis v. State, 14 Tex. App. 645; Eldridge v. State, 12 Tex. App. 208; Me Glasson v. State, 38 Tex. Cr. R. 351, 43 S. W. 93; Thompson v. State, 29 Tex. App. 208 15 S. W. 206; Livar v. State, 26 Tex. App 116, 9 S. W. 552.

The only bill which in any way attempts to state the contents of the money order is bill No. 13, in which it is alleged that the defendant in his motion for a new trial asked “the court to set aside the verdict rendered and the judgment entered herein because, from the reading, tenor, and effect of the instrument offered in evidence, and which was alleged to have been forged, it states upon its face that ‘any erasure, alteration, defacement or mutilation of_ this order renders it void,’ and that all the evidence offered by the state’s witnesses and by the defendant’s witnesses questioned on this subject stated that they could not determine what the written word, charged in the bill of indictment to be ‘five,’ was on the face of the express money order, and E. E. Grim (the expert witness for the state) testified that the writing was so mutilated and smeared that he could not determine what was intended by it, and the court erred in failing to charge the jury that if they believe from the evidence that the instrument offered was so mutilated that they could not determine what was intended by the writing, and that such erasure, defacement, and mutilation rendered the instrument void according to its reading, tenor, and effect, then and in that event they should find the defendant not guilty.” As before stated, all the evidence we have before us is the money order copied in the statement of facts, and there it is stated the word was written “five” as well as $5 in figures. We find the bank cashed it for him for $5, and the only evidence is that of Mr. Crim and some others that the written word that is alleged to be “five” is so badly written that they cannot determine by looking at it alone what it is, but just before this word is written plainly the figures, “Dollars 5 -cents,” and if the only thing the matter with the money order is a badly written word, when from the remainder of the instrument it is clearly determinable what the badly written word really is, this would present no variance and call for no charge in regard thereto. Bad writing and bad spelling will never vitiate an instrument. Hennessy v. State, 23 Tex. App. 353, 5 S. W. 215, and cases cited in sections 900 and 901, Branch’s Crim. Law, where it is said that bad or awkward writing will not vitiate an otherwise good complaint or indictment. In this bill, and in no other bill, is it stated by appellant what he thinks the written word really was, if it was not “five.” If in fact the word was not “five,” and could not have been so read, then a variance would be presented; but if it was so written that, taking the whole context and the figures used, it was apparent that it was intended to be written “five” and could be read that way, then there was no error, and the court did not err in failing to charge thereon. Appellant asked no charge in regard to the matter, and, as before stated, in none of his bills does he state what he contends the word really is. His contention by the bills, it seems, is that, it was badly written, and some of the witnesses so testify, and that is all this record discloses.

The complaint in the motion for new trial that the court failed to charge on circumstantial evidence is not justified by the record before us. In the charge of the court is a charge on circumstantial evidence couched in language frequently approved by this court. The only other complaint of the charge is likewise without merit. It could not have been injurious to defendant, as the court fully instructs the jury that the instrument must have been made willfully by defendant, without the knowledge or consent of J. I. Heard, agent of the express company, or they would acquit defendant, and the criticism is hypercritical.

The judgment is' affirmed.

On Motion for Rehearing.

Since writing the original opinion herein appellant has had the clerk to certify that the money order attached to the statement of facts is the money order introduced iji evidence, and under such circumstances we suppose that we should consider it as the original money order. But as the bill objecting to its introduction is not so drawn as to call our attention to the matter which is now sought to be complained of, nor drawn in a way to present any matter for consideration, we are of the opinion that there was no error in admitting the money order in evidence over the objections offered by appellant as shown by the bill of exceptions. It is only such objections as are made in the trial of the case that can be considered by this court on appeal; and, if there was a variance between the money order offered in evidence and the one alleged in the indictment, appellant in his bill should have shown the variance and should have shown he made this objection in the trial of the case.

Motion for rehearing is overruled.


source: Caselaw Access Project

author: PRENDERGAST, J.

license: Public Domain

text:
    TERRY v. STATE.
    (Court of Criminal Appeals of Texas.
    May 14, 1913.
    Rehearing Denied June 11, 1913.)
    Cbiminal Law (§ 1092) —Appeal—State - ment of Pacts.
    Where the order of the county court overruling accused’s motion for new trial allowed Mm 20 days from adjournment to prepare and file bills of exception and a statement of facts, bills of exception and a statement of facts filed subsequently , thereto cannot be considered.
    TEd. Note. — Por other cases, see Criminal Law, Cent. Dig. §§, 2803, 2829, 2834r-2861, 2919; Dec. Dig. § 1092.]
    Appeal from Mitchell County Court, A. J. Coe, Judge.
    J. M. Terry was convicted of violating the prohibition law, and he appeals.
    Affirmed.
    John B. Howard, of Midland, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, J.

Appellant was convicted of a misdemeanor for violating the prohibition law in Mitchell county and the lowest penalty assessed against him.

The term of court at which he was convicted adjourned on Pebruary 8, 1913. In the order overruling the motion for new trial appellant was allowed 20 days from adjournment to prepare and file bills of exception and a statement of fact. None of his bills of exception, nor his statement of facts, were filed .until 30 days after the court adjourned. Therefore neither his bills nor his statement of facts can be considered by this court. Durham v. State, 155 S. W. 222.

Nothing is presented which we can con-' sider, in the absence of a statement of facts and bills of exception. The judgment is therefore affirmed.


author: DAVIDSON, P. J.

text:
    WOODS v. STATE.
    (Court of Criminal Appeals of Texas.
    May 28, 1913.)
    Criminal Law (§ 1086) —Appeal—Re vie w— Denial ox Continuance — Record.
    Error in overruling defendant’s motion for a continuance will not be reviewed, where neither the application nor a bill of exceptions reserved to the ruling is in the record.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2736-2769, 2770, 2772, 2794; Dec. Dig. § 1086.]
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    Ed Woods was convicted of aggravated assault, 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

   DAVIDSON, P. J.

Appellant was convicted of aggravated assault; his punishment being assessed at one year’s imprisonment in the county jail.

The motion for new trial sets out several grounds why the conviction was erroneous. The first was that the court erred in overruling the motion for continuance. The application itself is not in the record, nor was a bill of exceptions reserved to this ruling of the court. So all the questions in regard to that matter cannot be reviewed. The record is before us without; a statement of facts or bills of exception, and as the matters are presented no error is shown.

The judgment is affirmed.


author: HARPER, J.

text:
    BUCKLEY v. STATE.
    (Court of Criminal Appeals of Texas.
    May 28, 1913.)
    1. Criminal Law (§, 1172*) —Instructions— Misdemeanors.
    While the court need not charge the jury in a misdemeanor case unless requested to do so, if he does give an erroneous charge, it will require a reversal, if it is excepted to and a correct charge requested.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3128, 3154-3157, 3159-3163, 3169; Dee. Dig. § 1172.*]
    2. Criminal Law (§ 815*) — Instruction-Defense.
    It is reversible error, in a prosecution for unlawfully carrying a pistol to refuse to submit to the jury the defense that defendant was taking the pistol to get it repaired, as he testified, where a special charge on that point was requested.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§, 1922, 1986; Dec. Dig. 815.*]
    Appeal from Sabine County Court; J. B. Lewis, Judge.
    R. W. Buckley was convicted of unlawfully carrying a pistol, and he appeals.
    Reversed and remanded.
    C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was prosecuted and convicted of the offense of unlawfully carrying a pistol, from which judgment he prosecutes this appeal.

There is but one question in the record that should be reviewed: Did the court err in failing to give a special charge requested by defendant? In a misdemeanor case the court is not required to charge the jury, unless requested so to do; but, in the event he does, do so, he should correctly present the law as applicable to that case, and if he does not do so, and the error in the charge is excepted to at the time, and a special charge requested in regard to the matter, it will present such error as will necessitate a reversal of the case.

That appellant had a pistol is proven beyond question; in fact, is not denied by appellant. But he says he bought the pistol the evening before; that he was working for Mr. Howard, but his home was with his father ; that the next morning, when arrested, he was taking the pistol to his father, to get him to carry it to Bronson to get it repaired. The court refused to submit this defensive plea in his charge, and refused the special charge in regard thereto, and it is such error as will necessitate a reversal of the case.

Reversed and remanded.


text:
    CULWELL v. STATE.
    (Court of Criminal Appeals of Texas.
    May 7, 1913.
    On Motion for Rehearing, June 4, 1913.)
    Criminal Law (§■ 1216*) — Punishment — Cumulative Sentences.
    The object of Code Cr. Proc. 1911, art. 862, providing that where one has been convicted of two or more crimes, and the punishment assessed in each is confinement in the penitentiary, the judgment and sentence shall be rendered in each case as if there had been but one conviction, except that the punishment on a subsequent conviction shall begin when the sentence in the preceding conviction terminates, is to provide for cumulative punishment; and where one is sentenced to the penitentiary pending his motion for new trial after conviction of another offense, the sentence on the latter conviction is properly made to begin on the termination of the former sentence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3310-3319; Dec. Dig. § 1216.*]
    Appeal from District Court, Potter County; James N. Browning, Judge.
    J. L. Culwell was convicted of crime, and appeals.
    Affirmed.
    Cooper, Merrill & Lumpkin, of Amarillo, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of false swearing and given the lowest penalty — two years in the penitentiary.

There is but one question in this case, and that is whether or not the court below, in sentencing the appellant herein, fixed the term to begin when the sentence of conviction in another case in Floyd county should terminate.

There is a statement oí facts on that question, and also a bill of exception by appellant which shows the facts. There was no controversy as to any of the facts. They show that on March 12, 1913, in this cause, defendant was properly convicted of false swearing and his penalty fixed as above stated; that a proper judgment of conviction was then rendered against him; that he made a motion for a new trial; that on March 15, 1913, upon a bench warrant from the district court of Floyd county, appellant was taken from the sheriff of Potter county to the county seat of Floyd county; that on March 17, 1913, appellant was tried in the district court of Floyd county for incest, and upon his plea of guilty his penalty was fixed at two years in the penitentiary and the proper judgment thereon entered; that on March 18, 1913, at his request and his waiver of the time allowed for making &■ motion for new trial, the court pronounced and entered the proper sentence against him in said incest conviction, and in said sentence the sheriff of Floyd county was ordered to deliver appellant to the sheriff of Potter county at Amarillo, subject to the disposition of his motion for new trial in the case in Potter county against him for false swearing, and when said motion shall be disposed of the sheriff of Potter county shall convey the appellant to the penitentiary, where he shall be confined to imprisonment for two years in accordance with the law. It was admitted that appellant is the identical same defendant who was tried and convicted in Floyd county on March 17, 1913, and that he was the same identical person who was tried and convicted in the district court of Potter county on March 12, 1913. When his conviction occurred in Potter county, he insisted that he should be permitted to remain there until his motion for new trial was heard and passed upon by the court, and that he did not consent to his removal to Floyd county on said bench warrant, but objected thereto; but the court, over his objection, recognized and granted said bench warrant from Floyd county, and permitted the Floyd county sheriff to take him out of the custody of the Potter county sheriff and take him to Floyd county, where the case against him was tried, and he was sentenced as above shown; that he was returned to the court and sheriff of Potter county on March 18, 1913 ; that on March 22, 1913, he was brought into court for the purpose of hearing his motion for new trial. He thereupon withdrew his motion for new trial and requested the court to pronounce sentence upon him as of date March 12, 1913. The court, desiring to investigate the law and determine whether he could, in sentencing appellant, fix his term to begin at the expiration of the Floyd county case, declined at that time to sentence him. But on March 28, 1913, after having investigated the law and satisfied himself on the point, did properly sentence the appellant to confinement in the penitentiary for two years, to begin at the expiration of the sentence in the Floyd county case. We deem it unnecessary to discuss this question.

Our statute (article 862, O. 0. P.) prescribes: “When the same defendant has been convicted in two or more cases, and the punishment assessed in each case is confinement in the penitentiary or the county jail for a term of imprisonment, judgment and sentence shall be rendered and pronounced in each case in the same manner as if there had been but one conviction, except that the judgment in the second and subsequent convictions shall be that the punishment shall begin when the judgment and sentence in the preceding conviction have ceased to operate, and the sentence and execution thereof shall be accordingly.”

Under our law the judgment of conviction in a felony case is not the final judgment. It takes the sentence, and until the sentence the judgment is not final. While the judgment of conviction was had in the Potter county case before the conviction and sentence in the Floyd county case, under the law the 'conviction in the Floyd county case became final before that in the Potter county case. This question has been expressly and correctly decided by this court against appellant. Ex parte Moseley, 30 Tex. App. 338, 17 S. W. 418; Miller v. State, 44 S. W. 162; Bullard v. State, 40 Tex. Ct. R. 270, 50 S. W. 348; Branch’s Crim. Law, § 741. See, also, section 1197, White’s Ann. C. C. P.

The judgment will be affirmed.

On Motion for Rehearing.

The facts are fully stated in the original opinion. The statute (article 862, O. O. P.) was also copied therein. Appellant contends in his motion for rehearing that that part of article 862 which is “except that the judgment in the second and subsequent convictions shall be,” etc., means, and should be construed only to mean, the judgment of “conviction,” and hot the sentence. He contends that the Potter county conviction was the first conviction, and the Floyd county conviction was the second conviction, and that the cumulative punishment, in order to be legal, should have been prescribed in the Floyd county sentence, and not in the Potter county sentence.

It is evident that the Legislature clearly intended that, where a person was convicted for two offenses, the time fixed for service in the penitentiary should be cumulative, and should not be concurrent; otherwise there would be but one punishment for two offenses. It would not be proper in the entry of the judgment upon the verdict of the jury of guilty in a felony case to then and therein fix the time at which the service of the defendant in the penitentiary shall commence. This is never done. The time the sentence is to begin is fixed by the judgment of sentence, and not the judgment upon the verdict. The judgment of sentence in the Floyd coun-~ ty case haying been rendered and entered before any sentence in the Potter county case was rendered or entered, it would not have been proper for the Floyd county sentence to have fixed the term of the appellant to begin when the sentence in the Potter county ease should terminate, because no judgment of sentence in the Potter county case had then been rendered, and no time had been fixed by the Potter county case for his sentence to begin. As a matter of fact, the record shows that the Potter county case was still pending on his motion for new trial. It might have been that upon hearing this motion the court in Potter county would have granted a new trial, or, refusing a new trial, on appeal to this court a reversal might have been ordered. Then, in either event, upon another trial appellant might be acquitted. Then there would be no judgment of either conviction or sentence in the Potter county case, at the expiration of which time the sentence of the appellant in the Floyd county case could have been fixed to begin.

It was the evident intention of the Legislature, and we think the only reasonable construction .that can be placed on said article 862 is, that whichever sentence is first pronounced and entered is the first conviction. And that to take the whole article and the clear purpose and intent of the Legislature it is clear to us that the last sentence pronounced is, in contemplation of that article, the second and subsequent conviction, and that the last sentence, whether it be the case first originally tried, wherein a verdict of guilty is rendered, or not, is the subsequent or last conviction and sentence contemplated by said article and the law.

The motion for rehenring is overruled.


text:
    VICKERS v. STATE.
    (Court of Criminal Appeals of Texas.
    May 28, 1913.)
    1. I-Iomxcidb (§ 300) — Manslaughter—INSTRUCTIONS.
    Deceased and defendant’s brother having engaged in a difficulty while in defendant’s absence, he was called to separate them, and undertook to do so when they were cutting each other with knives, and defendant claimed that in order to. prevent deceased from killing his brother defendant stuck deceased with a knife, which resulted in his death. - Held, that such evidence did not raise the issue of self-defense as to defendant in the defense of his own person; and hence an instruction on manslaughter which charged that if adequate cause existed, namely, if deceased had assaulted defendant’s brother with a knife in the presence of defendant, and defendant in sudden passion killed deceased, he should be convicted of manslaughter, without reference to whether he acted in the lawful defense of his brother, was erroneous, as depriving defendant of the right to justification in case he acted wholly in his brother’s defense.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§614, 616-620, 622-630; Dec. Dig. § 300.]
    2. Homicide (§, 122) — Defense of Relation —J ostification.
    If accused intervened in a difficulty between his brother and deceased, in which they were cutting each other with knives, and struck and killed deceased entirely in the defense of his brother, it would be justifiable homicide.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §•§ 177-181; Dec. Dig. § 122.]
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    Perry Vickers was convicted of manslaughter, and he appeals.
    Reversed and remanded.
    A. S. Baskett, 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

   DAVIDSON, P. J.

Appellant was allotted a term of two years in the penitentiary for manslaughter.

It is shown by the evidence: That deceased and others were in a restaurant in the city of Dallas. That there came up a disturbance, which resulted in the death of the deceased, Johnson. Police officers heard some screaming at the restaurant and hurried to the place, and found the deceased, Frank Johnson, injured, cut in several places and bruised on the head. The bruise on the head was caused by being struck by Pig Vickers with a chair or flat bottom stool. They reached the point of the trouble within less than five minutes. Johnson made a statement, which might be conceded as res geste and possibly a dying declaration, to the effect that. Perry Vickers cut him while Pig Vickers held him, and that Pig Vickers struck him with a chair. This was the testimony connecting appellant criminally with the assault on deceased. All the eyewitnesses testified that the deceased was in a row with Pig Vickers, whom he had accused of insulting his (deceased’s) wife. They engaged in a personal difficulty, each cutting the other with their knives, and that appellant was called upon by some one in the crowd to separate the combatants and undertook to do so. It is' claimed by his testimony that he did not inflict any of the injuries upon deceased. There was another one of the crowd who assisted appellant in separating the parties.

The court charged the jury on murder in both degrees, and appellant was acquitted of both. There is no evidence, so far as this record discloses, that any phase of murder is shown by the facts. In regard to manslaughter the court charged the jury that an assault made by the deceased with a knife upon the brother of defendant in the presence of the defendant is deemed an adequate cause, and further charged them as follows in this connection: “If you believe from the evidence, beyond a reasonable doubt, that the defendant, with a deadly, weapon, in a sudden passion aroused by adequate cause, as the same is herein explained, and not in defense of himself against the unlawful attack reasonably producing a rational fear or expectation of death or serious bodily injury, did with the means alleged strike and cut and stab and thereby killed Frank Johnson, the deceased, as charged in the indictment, you will find the defendant guilty of manslaughter.” This charge is criticised and held by appellant in his contention to be erroneous, because it nowhere recognizes the right of defendant to defend his brother, Pig Vickers, but in effect and in substance charges the jury that if adequate cause existed— that is, if deceased had assaulted the brother of defendant with a knife in the presence of defendant, .and defendant in a sudden passion killed deceased — to ¡convict) him of manslaughter, without reference to whether he acted in the lawful defense of his brother. This charge, it is claimed, practically deprives the defendant of the right to defend his brother, which issue was raised by the evidence. We are of the opinion the criticism is correct. The issue of manslaughter was submitted to the jury only upon the theory that appellant, aroused by adequate cause, because of the assault on his brother, had the right to defend himself, and that if he was not defending himself he would be guilty of manslaughter. The issue was that defendant was defending his brother, and the court should have charged the jury more specifically, and especially that if adequate cause existed, and defendant came to the rescue of his brother o and killed deceased, and not in defense of his brother or himself, either or both, then he might be guilty of manslaughter. But for the fact that this charge impinges the law and erroneously states it in reference to self-defense qualifying manslaughter, it would not have been necessary, perhaps, to reverse on this proposition, because appellant got the lowest penalty; but the court submitted the issue of manslaughter qualified by self-defense, on the theory only that appellant had the right only to defend himself. That was not the issue in the case. The issue was he was defending his brother. The charge is wrong from that standpoint.

Again, the court submits the law of self-defense mainly upon the issue that defendant had the right to defend himself. While in a confused way he did charge the jury that appellant would have a right to defend his brother the same as himself, yet it is done in that indefinite way which amounts to practically no charge, or a charge so defectively given that it minimizes appellant’s right in this respect. Appellant’s right of self-defense was not of himself, but of his brother. The officers who testified to Frank Johnson’s statement, whether it be considered as res gestae or a dying declaration, do not show the incipiency of the difficulty, or how it came about. They repeat the statement of Johnson that defendant cut him while his brother, Pig Vickers, held him and hit him with a chair. All the eyewitnesses show appellant was not at the begin-' ning of the difficulty; that he was called in to separate them; and that he and another party did separate them. If, under these circumstances; Pig Vickers struck deceased, and defendant jerked him away and separated them, appellant would not be guilty of homicide at all; but if he went into the difficulty for the protection of his brother, and then struck or assisted his brother Pig in striking and killing the man, then from his viewpoint he may not have been guilty of anything at all; he may have been justified on self-defense, not in defending himself, but in defending his brother. Again, if when defendant came upon the scene of the trouble, having been informed of the facts, and entered into the trouble and saw his brother under the bottom being cut with a knife, even if he struck with a chair himself, he would be justified under defense of his brother. Upon another trial this case should be submitted under the facts as testified, first, that if he was simply separating the parties and did not participate in the trouble with his brother in the homicide that he would not be guilty of anything; and, second, if coming upon the scene he believed his brother’s life was in danger by reason of the acts and conduct of the deceased, Johnson, and he entered into it with his brother for the defense of his brother, then he would not be guilty, but would be justified in defense of his brother. As we understand this record, the issue of self-defense as to defendant in person was not the issue. Johnson had made no attack upon him, but had made an attack with a knife upon his brother, Pig Vickers, and had him down on the floor cutting him with the knife. Without taking up the charges and repeating what was written by the court, the case was tried from the wrong standpoint. The issue of self-defense was made most prominent, so far as defendant’s right to defend himself was concerned, whereas it should have been the other way — that he had the right to defend his brother. That was the issue in this case. The court charged the jury mainly upon the other theory.

The judgment is reversed, and the cause is remanded.


author: BROWN, C. J.

text:
    CONLEY et al. v. DAUGHTERS OF THE REPUBLIC.
    (Supreme Court of Texas.
    June 4, 1913.)
    1. Statutes (§ 159) — Construction.
    The Supreme Court must construe two statutes so that both may stand, if they are fairly susceptible of such a construction.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. § 229; Dec. Dig. § 159.]
    2. Evidence (§§ 69, 83) — Presumptions.
    The Supreme Court'will presume that the Governor will seek the public good in discharging his official duties, and that a patriotic society, such as the Daughters of the Republic, will perform their legal duties.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 90, 105; Dec. Dig. §§ 69, 83.]
    3. Statutes (§ 159) — Repeal—Implication.
    In so far as two statutes irreconcilably conflict, the latest enactment must prevail.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. § 229; Dec. Dig. §, 159.]
    On motion for rehearing.
    Motion overruled.
    For former opinion, see 156 S. W. 197.

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

   BROWN, C. J.

We do not deem it necessary to discuss at length the objection of the plaintiffs in error’s counsel to the jurisdiction of the district court. It is sufficient to say that the facts do not bring the case within the terms of this article of the Revised Statutes of 1911: “Art. 5732 (4861). No court of this state [except the Supreme Court, as provided by article 1526] shall have power, authority or jurisdiction to issue the writ of mandamus or injunction or any other mandamus or compulsory writ of process against any of the officers of the executive departments of the government of this state to order or compel the performance of any act or duty which, by the laws of this state, they, or either of them, are authorized to perform, whether such act or duty be judicial, ministerial or discretionary.” No mandatory or compulsory writ is sought. Nor is it the purpose of the proceeding to compel the performance of any duty enjoined by law.

We can add nothing to the reasons given for holding in our opinion that the two acts involved are not in conflict. It is the duty of this court to so construe the laws that both can stand, if fairly susceptible of such construction. This court will presume that the Governor of Texas will seek the public good in discharging his official duties, and that the Daughters of the Republic will be equally patriotic, so that by co-operation the rights of each party may be preserved. If under the two statutes this may be done, there can be no destructive conflict between the two enactments.

The defendant in error is confronted with this indisputable condition. By necessary implication the act of 1911 conferred authority upon the Governor to do what he might find necessary in making the authorized improvements, and, it being the last expression of the legislative will, that act must prevail over the former law to the extent that the conflict is irreconcilable. The result would not be to limit the authority of the Governor, but to that extent it would abridge the rights of the Daughters.

The motion is overruled.


author: PRENDER.GA ST, J.

text:
    HOLLEY et al. v. STATE.
    (Court of Criminal Appeals of Texas.
    May 21, 1913.)
    1. Bail (§ 58) — Bond—Recital.
    Code Or. Proe. 1911, art. 231, relating to bail, provides that if defendant is charged with a felony it is sufficient to describe the offense by stating in the bond that he is charged with a felony, and, if he is charged with a misdemeanor, that he is charged with a misdemean- or. Held that, where accused was charged with bigamy, a recital in the bail bond that he was charged with a felony was a sufficient description of the offense; nor was it necessary that the bond should recite that the justice before whom the complaint had been filed admitted accused to bail, and that the amount of the bond had been fixed by the justice.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. §§ 263-277; Dec. Dig. § 58.]
    2. Bail (§ 62) — Bond—Date.
    Where a bail bond recited, “Signed and dated on this the 9th day of February, A. D. 1911,” that was the date of the bond, and not the date of a notation by the sheriff that the bond was taken and approved February 17, 1911.
    [Ed. Note. — For other cases, see Bail, Dec. Dig. § 62.]
    3. Bail (§ 77) — Scire Facias — Judgment Nisi — Recitals.
    A judgment nisi in a proceeding on a bail bond should so describe the bond as to identify it; and it is better that it should state also the date of the bond, though this is not strictly essential.
    [Ed. Note. — For otter cases, see Bail, Cent. Dig. §§ 335-349, 379, 403; Dec. Dig. § 77.]
    4. Bail (§ 88) — Scire Facias — Citation-Functions.
    The citation in a scire facias proceeding on a bail bond is to give notice to the sureties on the bond before a final judgment can be rendered on the bond and judgment nisi, and also serves as the pleading of the state, based on the judgment nisi.
    [Ed. Note. — For other eases, see Bail, Cent. Dig. §§ 3761-378; Dec. Dig. § 88.]
    5. Bail (§§ 77, 88) — Forfeiture—Scire Fa-cias— Citation — Judgment—Amendment.
    Where a mistake is made, either in the. judgment nisi or in the citation in scire facias on the bail bond, or both, either may be amended by leave of court as pleadings in a civil case, the judgment nisi by the judgment of the court making the necessary corrections, and the citation by proper pleading on behalf of the state, by the district or county attorney, or other person properly representing the state, under authority of the presiding judge, and on proper notice to the sureties.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. §§ 335-349, 376, 379, 403; Dec. Dig. §§ 77, 88.]

      6. Bail (§ 8S) — Citation — Requisites — Date oe Bond.
    Where a citation on scire facias on a baii bond did not recite the date of the bond, as required by Code Cr. Proc. 1911, art. 491, it was fatally defective.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. §§ 376-378; Dec. Dig. § 88.]
    7. Bail (§ 89) — Scire Facias — Exoneration —Plead in a.
    In scire facias on a bail bond the sureties, claiming exoneration by reason of sickness of the principal or uncontrollable circumstance preventing his appearance at court, as provided by Code Cr. Proc. 1911, art. 500, could not take advantage of such defense, unless properly pleaded.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. §§ 384 — 100, 402; Dec. Dig. § 89.]
    Appeal from District Court, Hardeman County; D. E. Decker, Judge.
    Action by the State against J. F. Holley and others on an appeal bond. Judgment for plaintiff, and defendants appeal.
    Reversed and remanded.
    J. O. Marshall and M. M. Hankins, both of Quanah, for appellants. 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

   PRENDER.GA ST, J.

This is an appeal by J. F. Holley, principal, and J. J. Holley, Y. E. Stubblefield, and A. E. Wilkirson, sureties, from a judgment against them on said principal’s bail bond.

Appellants have assigned many errors. We have considered them all, though it is unnecessary to mention and discuss all of them.

In our recent investigations in this and several scire facias cases we have been impressed with the many apparent, if'not real, conflicts in the decisions in such cases. So much so that we think it would be much better for the lower courts to be governed by and follow the statute on the subject. Our statutes regulating and prescribing the requisites of bail bonds and recognizances and the forfeiture thereof are so clear, plain, full, and unambiguous that it is entirely safe, if not the only safe way, to follow and abide by the statutes. We are at a loss frequently to understand why so many flagrant mistakes are made in these proceedings.

The bail, bond in this case is in every way legal and sufficient, and it follows and complies with the statute. C. C. P. 1911, art. 321. This article was enacted April 17, 1899, and took the place of the old article in the 0. O. P., and which was originally article 288. The old article, in prescribing the requisites of a bail bond, in subdivision 3 thereof, was: “That the offense of which the defendant is accused be distinctly named in the bond and that it appear therefrom that he is accused of some offense against the laws of the state.” The new article of the said act of April 17, 1899, instead of the old just above quoted, is: “If the defendant is charged with an offense that is a felony, that it state that he is charged with a felony. If the defendant is charged with a misdemeanor, that it state that he is charged with a misdemean- or.” So that the bond and other proceedings herein, simply and solely stating that the principal was charged “with a felony,” are correct. And it makes no fatal difference that some of the other proceedings state that he is charged “with bigamy, a felony,” or, vice versa, “with a felony, bigamy.” In all instances, however, it is best for each and all the proceedings to exactly follow each other. There can be no reason why this should not be done. As an instance, the bond in this case says the principal is charged with “a felony.” Some of the proceedings of forfeiture, instead of following the bond, say he is charged “with bigamy, a felony.” In order to say he is charged with bigamy, the clerk, or whoever is responsible for the interpolation, had to go outside of the bond, instead of accurately following it Neither is it necessary that the bond shall recite that the justice of the peace before whom a complaint had been filed against the appellant, J. F. Holley, admitted said Holley to bail, and that the amount of his bail bond was fixed by said justice. The bond is perféctly legitimate and regular without any such recitations.

The copy of the bond in the record before us, in the body thereof, in a separate paragraph to itself, states clearly and distinctly: “Signed and dated on this the 9th day of February, A. D. 1911.” This, then, is unquestionably the date of the bond. It is true that the sheriff, at the end of the bond, by the side of the signature of the principal and sureties, says: “Taken and approved this the 17th day of Feb., A.D. 1911, B. F. Walker, Sheriff Hardeman County, Texas.” Yet that is not the date of the bond; nor does it purport to be the date of the bond.

Of course, the bond is the basis for the whole proceeding of forfeiture. It is always better, though it may not be essential, that the judgment nisi state the date of the bond. Whether this be done or not, the judgnient nisi should certainly so describe the bond as to clearly identify it, and should certainly not misdescribe it, or make any mistake in the description thereof.

The citation has two distinct functions: First, it is the notice to the sureties, which is necessary to be served upon them, so that they shall have proper notice, before a final judgment can be rendered on the bond and judgment nisi; second, it is the pleading of the state, based on the judgment nisi. It, too, must follow the statute, substantially at least, if not literally. As stated above, the statute is so clear, plain, full, and unequivocal that the slightest care in entering the judgment nisi and the issuance of the citation should prevent any mistake whatever.

It is unquestionably the law, made plain by tbe statute, tbat if a mistake is made in either tbe judgment nisi or tbe citation, or both, tbat when tbe parties appear in court and answer thereto tbat either or both can and should be amended, under leave of tbe court, so as to correct any mistake, if one has been made. All these matters, being subject to amendment, can be amended as any pleading can be in any civil cause. Tbe judgment nisi, of course, by the judgment of the court, making any and all corrections necessary; the citation by a proper pleading on behalf of tbe state, by tbe district or county attorney, or other person properly representing tbe state — as stated, all by permission and under the authority of the presiding judge, and, of course, where necessary, with proper prior notice to the sureties. The pleadings in this case were properly amended in some particulars.

The requisites of the citation are plainly prescribed by article 491, C. C. P. 1911. Subdivision 4 thereof is: “It [the citation] shall state the date of such recognizance or bail bond, and the offense with which the principal is charged.” This latter part of this subdivision, to wit, “and the offense with which the principal is charged,” has been modified and changed by said article 321, O. C. P., in that, instead of the citation stating “the offense” by describing it, it is necessary only for it to state, if a felony, that it is “a felony,” without stating what the felony is. If it is a misdemeanor, by stating that it is “a misdemeanor,” without stating what the misdemeanor is. But the first part of this article, to wit, “it shall state the date of such recognizance or bail bond,” has not been changed, and is still one of the prescribed requisites of the citation.,

The appellants assign the invalidity of this citation, because it not only does not state the date of the bail bond, but it states a different date thereof, or undertakes to describe some other bond. It is true by the amended pleadings by the state, through the county attorney, the mistake in the citation, in effect that the said bond was dated March 13, 1911, was attempted to be corrected; but it was not corrected by giving the correct date of the bond, but only by alleging that it was taken and approved on the 17th day of February, 1911. Nowhere and in no way was this correct date alleged. This, in our opinion, necessitates the reversal of this case. This point may seem somewhat technical, but the statute, as stated above, is so plain, clear, full, and unambiguous, and positively prescribes that the citation shall state the date of the bail bond, that we think it the much better practice to require that the statute shall be complied with, and especially when the error is so clearly and distinctly pointed out by appellants, and could so easily have been corrected in the lower court.

There is but one other question we desire to call attention to. Article 500, O. O. P., prescribes clearly what causes, “and no other,” will exonerate the defendant and his sureties from liability upon the forfeiture nisi taken. The third of these causes is: “The sickness of the principal, or some uncontrollable circumstance which prevented his appearance at court, and it must, in every such case, be shown that his failure to appear arose from no fault on his part. The causes mentioned in this subdivision shall not be deemed sufficient to exonerate the principal and his sureties, unless such principal appear before final judgment on the recognizance or bail bond to answer the accusation against him, or show sufficient cause for not so appearing.” Appellants introduced evidence which, perhaps, they claim tended to establish this cause to exonerate them, but this was done without any pleadings whatever setting up any such defense. If appellants desire to take advantage of this cause, they must certainly do so by the proper pleading in the court below. As this cause will be reversed, they, of course, under the leave of the court, can amend their pleadings in any particulars pertinent and proper in this cause. We state distinctly that we do not intend hereby and do not pass upon the sufficiency or insufficiency of this cause. We merely call attention to it, so that, if appellants desire, they can properly plead it as a basis for their defense, if it is a defense.

The judgment is reversed and cause remanded.


text:
    PARSONS v. STATE.
    (Court of Criminal Appeals of Texas.
    May 28, 1913.)
    Homicide (§ 282) — First Degree Murder-Evidence.
    In a prosecution for homicide, evidence held to justify the court in submitting the offense of first degree murder.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 574; Dec. Dig. § 282.]
    Appeal from Criminal District Court, Dallas County; Barry Miller, Judge.
    Joe Parsons was convicted of first degree murder, and he appeals.
    Affirmed.
    Pierson & Pierson, of Dallas, for appellant. C. E. Dane, 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, J.

Appellant was convicted of murder in the first degree and life imprisonment inflicted.

Appellant submits one issue only to be decided by this court,. expressly waiving all other propositions and questions raised in the ease. His proposition is that the court below erred in submitting to the jury, for a finding, murder in the first degree. He concedes that the charge of the court on murder in the first degree is a correct and approved charge. The court also submitted murder in the second degree. Appellant concedes that that charge is a correct and approved charge on murder in the second degree. The court also submitted properly self-defense to which there is no complaint. It is unnecessary here to state any further of the court’s charge. We will state whatever is necessary hereinafter.

As appellant’s sole contention is as above stated, claiming that the evidence did not justify the submission of murder in the first degree, we will give in substance the full of the testimony raising that question. It will be unnecessary to give the evidence on any other issue.

The hilling occurred about 4 or 5 o’clock in the evening of November 30, 1912. Outside of appellant, only one witness was present who witnessed the killing. The evidence does not show any previous difficulty between appellant and deceased. Appellant testified that he and deceased “had never had any trouble before and were friends.” He also testified that he and deceased had been drinking that day. No evidence by him or any other witness that he or deceased were drunk. He also testified, “Henry Scott (deceased) was always pretty quarrelsome when he was drinking.”

Hack 1-Iill was the only witness present immediately before and at the time of the killing. After testifying that he had known appellant some years and deceased five or six months, and telling about where said parties, respectively, had worked for some time, and that appellant, deceased, and himself were boarding, or had rooms, one or the other or both, at Dock Dennis’ house in Dallas, fixing the number and street on which the house was situated, and that they were all in this house at the time of the killing, he further testified: “When I first came into the room (the room where appellant and deceased were and where the killing occurred), I came in through the west door, which is near where the head of the couch was. When I entered the room, Henry Scott (deceased) was standing in the room there somewhere, and Joe Parsons (appellant) was also standing there in the room. They were not doing anything when I entered the room, but Henry Scott asked Parsons did he want to play coon-can; and’Parsons says, ‘No, but I’ll deal monte;’ and Henry says, T don’t want to play monte;’ and Parsons says, ‘Well, there won’t be any game then.’ Then I passed through into the other room. I went on into the kitchen at that time. It was 30 or 40 minutes before I went back in the room again where the killing occurred. When I went into the room the second time, Henry was sitting down on the sofa, and Parsons was sitting down on the bed near the head of the bed; his elbows were leaning on the head of the bed, and his left hand and elbow on the bed. Parsons’ face was toward the foot of the couch. Parsons was sitting on the bed when I opened the door. He was sitting on the side of the bed right at the foot of the couch, and I came right in and sat down on the chair. There was a door from that room into the west room and then there was another door into the middle room, and when Parsons got up he came around like he was going to this door to the south room. I never saw Parsons with any knife at all. I never saw Parsons strike but one blow, but I thought he hit Scott twice, but I do not know whether he hit him the second time or not. I never saw anything in the hands of Henry Scott. I was looking at them both at the time,- but I wasn’t noticing particularly whether either one of - them had anything. * * * Henry Scott never did get up off the couch after he was struck. There was a whole lot of blood that dripped from Scott. Blood was on the wall and blood on the couch. At the time Scott was struck he had his head in his hands.”

He further testified: “On the evening of November 30, 1912, I .had been at Dennis’ house 30 or 40 minutes before the killing occurred, and had been in the room where the killing took place about a minute and one-half when the killing occurred. I had been over to the market, and passed by there and stopped. This was about 4:30 or 5 o’clock in the evening. I saw Henry Scott in the west end room of that house, which is the first room from the street. I walked into the room, and, when I pushed the door open, Henry Scott said to Joe Parsons, ‘You owe me 30 cents.’ Parsons said, T do not owe you anything.’ By that time I had got to the couch where Henry was sitting and the chair there by the side of it, and I sat down in the chair. Parsons got up, and he started like he was going to the door, and by the time he got just behind me, Henry says, ‘You do owe me 30 cents;’ and Parsons says, T don’t owe you nothing, you son of a bitch,’ and hit him; and I says, ‘What is the matter with you?’ and when I looked around blood was streaming from Henry Scott’s neck. Parsons hit Henry right over my head. I got up when he hit him and asked him what was the matter with all of them, and then I saw the blood streaming from this fellow Henry Scott. The couch was sitting in the west end of the room crossways; there was also a bed in the room right at the foot of the couch. It was a cane-bottom stool chair that I was sitting in about 1 y2 feet from the couch.”

On cross-examination he testified: “There were four rooms to that house. . At the time of the killing the door of that room was closed when I went in. At the time the blow was struck by Parsons, I could not say whether Scott was between Parsons and the door or not. I do not know exactly how close Parsons was to the door at that time. I think both of them were about the same distance from the door. I thought at first that Parsons was going towards the door; there was nobody between Parsons and Scott when Parsons struck him. Parsons struck over my shoulder. Immediately after the killing, the undertaker was phoned for, and a great many people gathered — Scott’s wife and other people. I do not know whether Scott had a knife or not at the time of the killing. Scott was ‘sorter’ angling to my left side. I do not know what kind of motion Scott made, because I did not see him at that time. He might hare made one while my side was to him. I do not know ■exactly how close Parsons was to Scott when he hit him, because he was behind me at the time he hit him. Defendant struck Scott with his right hand.”

Nettie Hampton, for the state, testified that she knew appellant and had seen deceased four or five times, but was not personally acquainted with him; that she knew appellant about three years and heard of the killing. Then said: “I saw the defendant at 9 o’clock on Saturday night following the killing. He was at my house, and my house is not so far from the place of the killing' — is about three blocks, I think. Defendant had been to my house before that night; he used to room and bpard with me. On this night defendant asked me if I had been to Dock Dennis’ house, and I told him, ‘Yes;’ and he asked me if the son of a bitch was dead. I told him I guessed he was, the undertaker had him. He was talking about Henry Scott. Then he says he wanted somebody to go get his coat from over there. Defendant stayed at my house about 15 or 20 minutes. He was drinking at that time. I don’t know if anybody got his coat for him or not, and he did not tell me where he was going, and did not tell me anything about how the killing happened; he said he had killed Scott, but did not say why he had killed him.”

Lula Scott, the wife of deceased, after testifying that she had been at the house of Dennis where the killing occurred about 15 minutes before the killing, and that she did not see it and knew nothing about it until immediately after it occurred, testified: “I was in the kitchen at the time. When I went in the room, I found my husband in there dead. He was lying crossways of the couch, on the couch with his feet on the floor. He was about halfway on the couch. I saw the blood on the couch and I did not see any weapon around there. Joe Parsons had come out of the room when I got in there. I saw him come because he came right through the room where I was and went out on the porch. I says to him, ‘Joe Parsons, you killed my husband;’ and he says, ‘Yes, and if you don’t turn me loose, I will kill you.’ And then he went on south ■on Preston street, and he had a knife in his hand at that time. It was a red handled pocket knife with a long keen blade. Just like the knife now shown to me.” On cross-■examination she said: “If my husband was •drinking that evening, I did not know it.”

John Skinner, witness for appellant, among other things, testified: “I saw her (Lula Scott, deceased’s wife) run up to Parsons or towards him. I do not know if she said anything or not, but was holloeing.” That he was about 20 feet from her at the time, and he never heard Parsons tell her if she did not get away he would kill her. On cross-examination he testified that he did not see Lula Scott grab Parsons by the arm. “I told the women there in the house that Henry had got cut, and told this woman not to run on to Parsons. She may have grabbed Parsons by the arm, but I did not know that she did. I swore before the grand jury that Henry’s wife ran out after I told them that Henry had got cut, and I says, ‘Don’t you run on to that man,’ when she grabbed Parsons by the arm and he jerked loose.”

The knife with which the killing was done was produced, identified, and introduced in evidence by the state. One of the witnesses for the state testified that he found and arrested appellant in Ft. Worth Sunday night in the night after he had gone to bed; the killing having occurred the Saturday evening before, as stated above. This officer testified that he found on appellant’s person “a long-bladed red-handled pocket knife. * * * The blade of the knife was between 4 and 4y2 inches long.”

John Whitfield,' an undertaker, testified: “I remember when this defendant killed Henry Scott. I went to the place where the killing occurred, a block from Central avenue on Preston street, ifi the city of Dallas, Dallas county, Tex. When I got there I found the body of Henry Scott. He was dead. I found the body of Henry Scott in the west room on a couch, with his throat cut, severing the carotid artery. The cut began at the lower tip of the left ear and ranged downward to the Adam’s apple. His head was nearly severed from his body, and was hanging by a piece of skin. It looked like the cut was made by sticking the knife in the back of the deceased’s neck, and drawing it clear round to the front.”

The court charged on murder in the first degree, after giving the style and number of the cause, court, and the term, it is:

“Gentlemen of the Jury: The defendant stands charged by indictment with the offense of the murder of Henry Scott, alleged to have been committed in the county of Dallas and state of Texas, on or about the 30th day of November, 1912. To this charge the defendant has pleaded ‘not guilty.’
“I give you in charge, as the law applicable to this case, the following:
“(1) Every person with sound memory and discretion, who shall unlawfully kill any reasonable creature in being, within the state, with malice aforethought, either express or implied, shall be deemed guilty of murder.
“(2) Murder is distinguishable from every other species of homicide, by the absence of circumstances which reduce the offense to negligent homicide or manslaughter, or which excuse or justify the homicide.
“(3) Malice is a condition of the mind which shows a heart regardless of social duty and fatally bent on mischief, the existence of which is inferred from acts committed or words spoken.
“(4) Malice, which is absolutely essential to constitute the offense of murder, is either express or implied.
“(5) All murder committed with express malice is murder in the first degree.
“(6) Express malice, which is absolutely essential to constitute murder in the first degree, is where one with sedate, deliberate mind and formed design unlawfully kills another.
"(7) When an unlawful killing is established, the condition of mind of the party killing, at the time, just after the killing, is an important consideration in determining the grade of the homicide; and, in determining whether murder has been committed with express malice or not, the important questions for a jury to consider are: Do the facts and circumstances in the case at the time of the killing, and before and after that time, having connection with or relation to it, furnish satisfactory evidence of a sedate and deliberate mind, on the part of the person killing, at the time he does the act? And do these facts and circumstances show a formed design to take the life of the person slain, or to inflict on him some serious bodily harm, which in its necessary and probable consequences may result in his death? Or do the facts and circumstances in the case show such a general reckless disregard of human life as necessarily includes the formed design against the life of the person slain? If they do, the killing, if it amounts to murder, will be upon express malice.
“(8) In order to warrant a verdict of murder in the first degree, express malice must be shown by the evidence to have existed, that is, the jury must be satisfied from the evidence, beyond a reasonable doubt, that the killing was a consummation of a previously formed design to take the life of the person killed,, and that the design to kill was formed deliberately, with a sedate mind, that is, at the time when the mind of the person killing was self-possessed and capable of contemplating the consequences of the act proposed to be done. There is, however, no definite space of time necessary to intervene between the formed design to kill and the actual killing. A single moment of time may be sufficient. All that is required is that the 'mind be cool and deliberate in forming its purpose, and the design to kill is formed.
“(9) When the evidence satisfies the mind of the jury, beyond a reasonable doubt, that the killing was the result of a previously formed design by the defendant to kill the deceased, and that the design was formed when the mind was calm and sedate and capable of contemplating the consequences of the act proposed to be done by him, and such killing is further shown to have been unlawful and done with express malice, then the homicide is murder in the first degree, and your verdict should be rendered accordingly.
“(10) To warrant a conviction of murder in the first degree, the jury must be satisfied by the evidence, beyond a reasonable doubt, that the defendant, before the act, deliberately formed the design with a calm and sedate mind to kill deceased; that he selected and used the weapon or instrument reasonably sufficient to accomplish the death by the mode and manner of its use. The act must not result from a mere sudden, rash, and immediate design, springing from an inconsiderate impulse, passion, or excitement, however unjustifiable and unwarrantable it may be.
“(11) Now, if you believe from the evidence, beyond a reasonable doubt, that the defendant, Joe Parsons, did, in the county of Dallas and state of Texas, on the 30th day of November, 1912, as charged in the indictment, with express malice aforethought, with a knife being a deadly weapon, or instrument well calculated and likely to produce death, by the manner in which it was used, with a sedate and deliberate mind and formed design to kill, unlawfully cut and stab and thereby kill said Henry Scott, you will find him guilty of murder in the first degree and so state in your verdict, affixing the penalty therefor.
“(12) The punishment for murder in the first degree shall be by death or by confinement in the state penitentiary for life, as the jury may determine and state in their verdict.”

This charge on murder in the first degree was followed by a correct and full charge on murder in the second degree. Following that with this, in a separate paragraph: “If from the evidence you are satisfied beyond a reasonable doubt that the defendant is guilty of murder, but have a reasonable doubt whether it was committed upon express or implied malice, then you must give the defendant the benefit of such doubt, and not find him guilty of a higher grade than murder in the second degree.” And concluded the charge as follows: “In all criminal cases the burden of proof is on the state. The defendant is presumed to be innocent until his guilt is established by legal evidence, beyond a reasonable doubt; and in case you have a reasonable doubt as to the defendant’s guilt you will acquit him, and say by your verdict ‘not guilty.’ You are the exclusive judges of the facts proved, of the credibility of the witnesses, and of the weight to be given to the testimony; but you are bound to receive the law from the court, which is herein given you, and be governed thereby.”

It is useless to quote the statutes, or cite or quote the decisions. All of the law of murder in the first degree is so fully, completely, and aptly charged in the court’s charge on murder in the first degree that no discussion on our part could amplify or elaborate the law on the subject.

We hare again and again read and studied this evidence and the charge, and the law applicable to the question, and we are convinced that the court did not err in submitting murder in the first degree and that the evidence justifies the verdict.

This being the sole question, as repeatedly stated by appellant, the judgment will be affirmed.


text:
    GILES v. STATE.
    (Court of Criminal Appeals of Texas.
    May 28, 1913.)
    1. Intoxicating Liquors (§ 205) — Violation of Local Option Law — Affidavit— Sufficiency.
    An affidavit charging a violation of the local option law need not allege that the sale of liquor was unlawful.
    [Ed. Note. — Eor other cases, see Intoxicating Liquors, Cent. Dig. § 225; Dec. Dig. § 205.]
    2. Criminal Law (§ 596) — Continuance-Absence of Impeaching Witness.
    It is not error to refuse a continuance to procure testimony to impeach the complaining witness by proof of contradictory statements.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1328-1330; Dec. Dig. § 596.]
    3. Criminal Law •(§ 1159) — Verdict—Conclusiveness.
    A verdict on the sharply conflicting testimony of the complaining witness and accused will not be disturbed on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3074-3083; Dec. Dig. § 1159.]
    Appeal from Sabine County Court; J. B. Lewis, Judge.
    Clark Giles was convicted of violating the local option law, 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

   DAVIDSON, P. J.

Appellant was convicted of violating the local option law, his punishment being assessed at a fine of $25 and 20 days’ imprisonment in the county jail.

The affidavit is attacked because it does not allege that the sale was “unlawful.” The word “unlawful” is not necessary to be stated in the pleadings charging a violation of the local option law. The complaint and information are sufficient to charge the offense.

Appellant filed an application for a continuance on account of the testimony of one W. S. Smith, alleging that Smith was foreman of the grand jury, and the complaining witness .was before the grand» jury. Smith was wanted to impeach the complaining witness on a certain statement which was supposed to be contrary to his testimony on the trial of the case. As a rule applications for continuance to secure impeaching testimony should not be granted. It seems that this testimony was only impeaching, and therefore the court did not err in overruling the application.

The issue was sharply drawn, the witness for the state testifying he bought the whisky from appellant, and appellant denies this emphatically. This was a matter for the jury, and this court would not be justified under the decisions to reverse the judgment for this reason.

The judgment is affirmed.


text:
    GILES v. STATE.
    (Court of Criminal Appeals of Texas.
    May 28, 1913.)
    1. Intoxicating Liquors (§ 239*) — Instruction — Clerical Errors — Misleading Instructions.
    Where'the evidence on a trial for violating the local option law was confined to a sale on December 24, 1911, the date alleged in the indictment, and the court, in stating the case in its instructions, stated that the offense was alleged to have been committed on or about that date and charged that, if the sale was made at the time alleged and accused only acted as agent, he must be acquitted, and that if the jury believe beyond a reasonable doubt that a sale was made by accused at the time alleged he should be convicted, the clerical error in an instruction authorizing a conviction if accused, on or about December 24, 1913, and within two years next before the filing of the indictment, September 27, 1912, sold intoxicating liquor, was not misleading.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 331-347; Dec. Dig. § 239.*]
    2. Criminal Law (§ 1056*) — Appeal—Questions Reviewable.
    Where the objection to a clerical error in the instructions in a misdemeanor case was first raised by motion for a new trial and there was no exception to the instructions when given, or during the trial, and the bill of exceptions filed 20 days after the adjournment of the court was solely to the court’s overruling the motion for new trial on that ground, the error was not reviewable.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2668, 2670; Dec. Dig. § 1056.*]
    Appeal from Sabine County Court; J. B. Lewis, Judge.
    Clark Giles was convicted of crime, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted under the misdemeanor clause of our prohibition statute and his punishment fixed at the lowest.

The indictment charges the illegal sale of intoxicating liquor by appellant to Sam Roberts on December 24, 1911. The election, putting prohibition in force in said county, is shown to have been long before our statute making the sale thereafter a felony. The evidence was clearly sufficient to justify the conviction. Said Roberts, to whom the illegal sale was alleged, testified positively that he .went to appellant’s house in company with Lige Montgomery on or about December 24, 1911, and then and there bought a quart of whisky from appellant and paid him $1.25 therefor. Lige Montgomery testified that he went with Sam Roberts to appellant’s house at the time mentioned and heard Roberts tell appellant that he wanted some whisky, and that Giles told him if he had the money he could get the whisky; that Roberts then went into appellant’s house with appellant and came out with a quart of whisky. Appellant testified that he let Roberts have the whisky; that Roberts asked him if he had any whisky and he told him no; that then Roberts asked him if he could get him a quart, and he told him he would try, and then went in the house and got the whisky from Henry Giles, who was in the house lying on the bed; that he (appellant) had no interest in the whisky he let Roberts have, nor was he in any way interested, but he got it as an accommodation for Roberts. Outside of the fact that it was agreed that prohibition was in force in Sabine county, the above is in substance the testimony in the case in full.

The sole question in the case is the complaint by appellant of this portion of the court’s charge: “Now, if you believe from the evidence beyond a reasonable doubt that the defendant in Sabine county, Tex., on or about the 24th day of December, 1913, and within two years next before the filing of the indictment herein, did unlawfully sell intoxicating liquor to Sam Roberts, as charged, * * * you will find him guilty,” etc.

It will be seen by this that the court made a clerical error in his charge in the year “1913” when it should have been “1911.” As stated above, the indictment charged that the sale was made on or about December 24, 1911. All of the testimony was about the sale on that day and on no other. The court in his charge, in first stating the case, told the jury: “The offense is alleged to have been committed in Sabine county, Tex., on or about the 24th day of December, 1911.” The indictment shows to have been filed first in the district court September 27, 1912, and in the county court October 1, 1912. In the portion of the charge herein above quoted, wherein the clerical error of “1913” is made, when the date should have been “1911,” the court says: “And within two years next before the filing of the. indictment herein.” The court further in his charge submitting the question properly of the agency of the appellant in making the sale told the jury that if said “sale of whisky was made at the time and place alleged,” and that defendant only acted as agent, etc., to acquit him. Again, in submitting this question the court told the jury that if, on the other hand, the jury believed from the evidence beyond a reasonable doubt “that a sale of whisky was made at the time and place alleged,” and they should believe beyond a reasonable doubt that appellant sold the whisky as alleged, etc., to find him guilty.

The ease was tried in the county court on February 21, 1913. The term began on February 17th and adjourned March 7, 1913. The record shows that the question of this clerical error was first raised by appellant’s motion for new trial after his conviction. There was no exception to the charge of the court when the charge was given, or during the trial. There is a bill of exception which was allowed and filed in the lower court on March 27th, 20 days after the court had adjourned. This bill is solely and simply to the court’s overruling his motion for new trial on the said ground above stated.

Under the circumstances the question is not raised in any such way, this being a misdemeanor casé, as that this court is authorized to review it. However, if we could, the facts above stated clearly show that the court, in stating “1913” instead of “1911,” merely made a clerical error, which could not and did not in any way mislead the jury or affect the verdict. White v. State, 61 Tex. Or. R. 501, 502,135 S. W. 562; Skinner v. State, 154 S. W. 1008.

The judgment is affirmed.


text:
    BUSH v. STATE.
    (Court of Criminal Appeals of Texas.
    March 5, 1913.
    Rehearing Denied June 11, 1913.)
    1. Criminal Law (§ 595) — Continuance-Absence oe Witnesses — Denial—Discretion.
    Denial of a continuance, in a prosecution for seduction, ■ because of the absence of two witnesses by whom defendant expected to prove that each “had hugged and kissed” prosecutrix more than two years prior to the commission of the offense, was not an abuse of discretion.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §.§ 1311, 1323-1327; Dec. Dig. 595.]
    2. Seduction (§> 45) — Promise oe Marriage ■ —Evidence.
    Evidence held to sustain a conviction of seduction under promise of marriage.
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. §§ 80-82; Dec. Dig. § 45.]
    3. Seduction (§ 50) — Prosecutrix’s Testimony — Corroboration.
    An instruction in a prosecution for seduction, that the corroboration of prosecu-trix’s testimony must extend to and include the promise of marriage, if any, and the act of intercourse, and that her testimony connecting defendant with the commission of the offense must not only be corroborated but the jury must believe beyond a reasonable doubt that it is true,” that her testimony is true, and that she has been corroborated by other evidence “connecting” defendant with the offense charged, was not prejudicial to defendant, but was too onerous to the state.
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. §§ 89-92; Dec. Dig. § 50.]

      4. Seduction (§ 29) — Ohtense—What Constitutes. i
    An instruction, that seduction is not complete unless the female alleged to have been seduced be at the time a chaste person unmarried and under 25 years of age and was persuaded to surrender her chastity and have carnal intercourse with defendant by reason of his promise to marry her and must have relied upon said promise and must not have surrendered her virtue or yielded to his desires through any other consideration, was proper.
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. § 53; Dec. Dig. § 29.]
    5. Criminad Law (§ S29) — Request to Charge — Insteuctions Given.
    It is not error to refuse requests to charge substantially covered by instructions given.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §■ 2011; Dec. Dig. §¡ 829.]
    6. Seduction (| 50*) — Instructions.
    An instruction, in a prosecution for seduction, that if prosecutrix ever had intercourse with a “man” other than accused, the jury should acquit, was not misleading in excluding possible intercourse between prosecu-trix and a “boy”; there being no evidence, on the issue of prosecutrix’s alleged intercourse with another than defendant, that she had ever been intimate with a “boy.”
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. §§ 89-92; Dee. Dig. § 50.]
    Appeal from District Court, Jones County; Jno. B. Thomas, Judge.
    Jess Bush was convicted of seduction, and he appeals.
    Affirmed.
    C. P. Chastain, of Hamlin, and Chapman & Coombes, of Anson, for appellant. ' C. E. Lane, Asst. Atty. Gen., for the State.

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

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

   HARPER, J.

Appellant was prosecuted, charged with seduction, adjudged guilty, and his punishment assessed at five years’ confinement in the penitentiary.

In the first bill of exceptions he complains of the action of the court in overruling his application for a continuance on account of the absence of two witnesses, by whom he states he expects to prove that each of them “had hugged and hissed” the alleged injured female. The record discloses that, if either of the persons named had ever been with Miss Dutton, it was long prior to the date of the alleged seduction; that appellant, and appellant alone, had visited her for two years immediately preceding the date of this trial; and that the absent witnesses had not been with her during that period of time; and, under the record in this case, the testimony is not of that material nature which wmuld enable us to say that the court abused his discretion in overruling the application for a continuance.

The next bill complains of the insufficiency of the testimony. Appellant testified in the case, and admitted that he, and he alone, had been going with Miss Dutton, for about two years; that he went with her frequently, and she visited the best people in the neighborhood, going with her to parties, to church, and other places. He also admitted having sexual intercourse with her .on the occasions stated by her, but he denies that he was engaged to marry her at the time, or that he had ever promised to marry her. We think the facts and circumstances in the case corroborate her as to the material issues in the case.

The court instructed the jury that the corroboration of Miss Dutton’s testimony “must extend to and include the promise of marriage, if any, and the act of intercourse,” and the charge on accomplice testimony is one frequently approved by this court, and in fact it is not only not subject to the criticism made by appellant, but is more onerous on the state than the law requires, for it required not only that her testimony connect the defendant with the commission, but also required the jury “to believe beyond a reasonable doubt that her testimony was true, and that she has been corroborated by other evidence connecting the defendant with the offense charged.”

The criticism of the definition of the word “seduce” is without merit. The definition is full and complete, and this paragraph instructs the jury: “The crime of seduction is not complete unless the female alleged to have been seduced be at the time of the act a chaste person, unmarried, and under the age of 25 years, and was persuaded to surrender her chastity and have carnal intercourse with the man by reason of his promise of marriage to her, and must have relied on the promise of marriage, and must not have surrendered her virtue or yielded to his desires through any other consideration.”

There was no error in refusing the two special charges requested, as they were fully covered by the court in his main charge. The court instructed the jury that if Miss Dutton was not a chaste woman, or if she had ever had intercourse with any other man, or if she yielded her person upon a conditional promise of. marriage, or if she yielded because of her own amorous desires, or the jury had a reasonable doubt on either of these issues, appellant would not be guilty of any offense, and was a fair presentation of every issue in the case.

The criticism that “the court erred in instructing the jury that if she ever had intercourse with a man, to acquit, in that the jury might have been misled, because it might have been a boy who had intercourse with her,” is hypercritical, and has no foundation in the testimony. The only person besides appellant who testified he had ever had intercourse with Miss Dutton was defendant’s brother, and the evidence discloses he is a full-grown man. However, Miss Dutton denies ever having had intercourse with this brother.

We have carefully reviewed each ground in the motion for new trial, and none of them present reversible error.

The judgment is affirmed.