text:
    BERRY v. STATE.
    (Court of Criminal Appeals of Texas.
    March 19, 1913.
    Rehearing Denied April 16, 1913.)
    1. Trespass (§ 77) — Criminal Responsibility — Statutory Provisions — Repeal oe Statutes.
    Pen.- Code 1895, art. 804, which made one entering inclosed and posted lands of another for hunting with firearms, etc., liable to a fine, by article 805 was made inapplicable to inclosures of 2,000 acres in one inclosure. Acts 26th Leg. c. 102, applying to inclosures of 2,00o1 acres or more, prohibited hunting upon inclosed and posted land under a penalty not exceeding $200, and provided by section 4 that it should not repeal the law as to inclosures of 2,000 acres or less; and Acts 28th Leg. c. 103, amending Pen. Code, art. 804, provided a penalty of not less than $10 nor more than $100, and by section 2 provided that it should not apply to inclosures containing 2,000 acres or more. Held that, as Pen. Code, art. 804i, was not repealed by Acts 26th Leg. c. 102, and as Acts 26th Leg. c. 102, was not repealed by Acts 28th Leg. c. 103, the law in 1903 prohibited hunting within inclosed and posted lands containing less than 2,000 acres without the consent of the owner, under penalty of not less than $10 nor more than $200, and hunting within inclosed lands containing more than 2,000 acres under fine not exceeding $200; the distinction in the two later acts being that inclosed lands of less than. 2,000 acres need no't be posted, while inclosures of 2,000 acres or more should be posted.
    [Ed. Note. — For other cases, see Trespass, Cent. Dig. § 167; Dec. Dig. § 77.)
    2. Statutes (§ 159) — Repeal by Implication.
    A Legislature may repeal by implication; but, to justify the finding of the intention to repeal one statute by another, either the two statutes must be irreconcilable, or the intent to repeal must be clearly expressed, and where the intention not to repeal is manifest there is no room for repeal by implication.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. § 229; Dec. Dig. § 159.]

      3. Statutes (§ 158) — Presumptions to Aid Construction — Repeal by Implication.
    Where express terms are not used, the presumption is always against the intention to repeal.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. § 228; Dec. Dig. § 158.]
    4. Statutes (§ 152) — Repeal—Express Repeal.
    An express repeal of a statute’ may be accomplished only by positive enactment; but, the question of repeal being one of legislative intent, an express declaration that a particular statute is repealed will not be given effect, where it was apparent that the Legislature did not so intend.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 219, 223, 224, 227; Dec. Dig. § 152.]
    5. Statutes (§ 153) — Express Repeai>-Re-cital in Title of Act.
    A recital in the title of an act that its purpose is. to repeal a previous act is not of itself sufficient for that purpose, in the absence of a repealing clause in the body of the statute ; tbe title not being an operative part of the act.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. § 220; Dec. Dig. § 153.]
    0. Statutes (§ 157) — Repeal of Inconsistent Acts — General Repealing Clause.
    A general clause repealing all acts or parts of acts inconsistent therewith, while effective in repealing inconsistent enactments, extends only to those acts on the same subject, or parts of such acts, clearly inconsistent with the repealing act, and only to the extent of the conflicting provisions.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 225, 226; Dec. Dig. § 157.]
    7. Statutes (§ 158) — Repeal by Implication.
    A statute is repealed by implication whenever subsequent legislation shows that the Legislature does not intend it to remain in force, and, conversely, no statute operates as an implied repeal of an earlier statute, if it appears that the Legislature did n'ot so intend; but repeals by implication are not favored, and a statute will not be held to repeal any former law relating to the same matter, unless the later act is either repugnant to the earlier one, or fully embraces the subject-matter thereof, or unless the reason for the earlier act is removed.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. § 228; Dec. Dig. § 158.]
    8. Statutes (§ 167) — Repeal by Adoption of Code — Provision Omitted.
    Acts 26th Leg. c. 102, applicable to inclosures of 2,000 acres or more, prohibited hunting upon inclosed and posted land without the consent of the owner, under penalty of not more than $200, and by section 4 provided that it should not repeal the law as to inclosures of 2,000 acres or less. Pen. Code 1895, arts. 804, 805, and Acts 28th Leg. c. 103, amending article 804, not applying to inclosures of 2,000 acres or more, provided a penalty of not less than $10 or more than $100. The codifying commission provided by tbe Legislature of 1899 brought forward in the Penal Code of 1911 the act of 1903 as article 1255, and entirely omitted the act of 1899; and in 1911 the Code was enacted by bill providing in section 1 “that the following titles, chapters, and articles shall hereafter constitute the Penal Code of the state of Texas,” and in section 4 that “nothing in this act shall be construed or held to repeal * * * any law or act passed by this Legislature at its regular session.” and no other acts were specifically exempted from repeal. The Penal Code so adopted contained no express repeal of the act of 1899 and no provision dealing with the subject of that act. Held, that tbe adoption of the Code did not impliedly repeal the act of 1899, and that it was still in full force and effect.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 242, 243; Dec. Dig. § 167.]
    Appeal from Medina County Court; H. E. Haass, Judge.
    W. E. Berry was convicted of bunting in inclosed and posted lands of another containing more than 2,000 acres, and he appeals.
    Affirmed.
    Y. H. Blocker, of Hondo, for appellant.
    First Assignment of Error in Two Sections— Section A: The court erred in overruling appellant’s motion to quash the information and affidavit filed in this cause, charging appellant with unlawfully and knowingly hunting on the inclosed and posted lands of C. B. Woodward without his consent, for the reason that said affidavit and information charges no offense against the laws of the state of Texas, in that said affidavit and ihfor-mation charges the defendant, under the law as passed by the Acts of the 26th Legislature, A. D. 1899; said act having been repealed by the Acts of the Legislature of 1903 (page 159), said two acts being in direct conflict with each other on the same subject-matter. And the act of 1903 being a later act and a valid law, repealed the older law or act of 1899, by amending said act of 1899. Hence no offense can be committed by appellant under the provisions of said old law. (Trans, p. 15).
    Proposition under Section A: The first section of assignment No. 1 is submitted as a proposition within itself.
    Statement: The appellant was prosecuted and convicted under the Acts of 1899, 26th Legislature, page 173 (see information, Trans, p. 2), which was an added section to article 804, Penal Code. The Acts of 1903 amended article 804, Penal Code, but did not pass a repealing clause directly repealing the act of the 26th Legislature. It provided a penalty by fine, of not less than $10 nor more than $100, to hunt with firearms upon the inclosed lands of another without the consent of the owner, and providing further that said act shall not apply to inclosures including 2,000 acres or more in one inelo-sure, while the act of the 26th Legislature provided for a penalty of not more than $200. Again, the act of 1899 is in conflict with the act of 1903, in that the act of 1903 provides that said act shall not apply to inclosures including 2,000 acres or more in one inclosure, while the act of 1899 has no such limitation and provides no liability to the penalty, unless the owner or proprietor of the inclosure shall at each entrance keep a notice with the word “Posted” marked thereon.
    Section B of First Assignment: The court erred in overruling appellant’s motion to quash the affidavit and information, because “no prosecution of appellant could be bad or sustained by virtue of said act of 1899, as the same no longer exists on the criminal statutes of the state of Texas as1 a law, for the reason that the Legislature of 1911, 32d session, adopted the Criminal Code as banded down by the codifiers, wherein the act of 1903 was adopted and made the law as the only hunting and fish law in the Criminal Code.” (Trans, p. 16.)
    Proposition under Section B: The above section B of first assignment is also submitted as a proposition.
    Statement: When this complaint and affidavit was filed, the 32d Legislature had, by an act entitled “An act to adopt and establish the Penal Code and Code of Criminal Procedure for the state of Texas,” adopted the present Penal Code, which was approved by the Governor March 31, 1911, and became a law 90 days after adjournment of the Legislature, and was duly certified to on December 2, 1911, by the Secretary of State. Said act of 1903, being adopted and brought forward in said revised Penal Code as article 1255 of the present adopted Penal Code, is now the only law on the subject of hunting upon the inclosed land of another without the consent of the owner; the act of 1899 being dropped out as repealed.
    Authorities: State v. Smith, 44 Tex. 445; Acts 1903, page 159, 28th Legislature; Revised Penal Code of 1911, art. 1255; Stebbins v. State, 22 Tex. App. 35, 2 S. W. 617; Stir-man v. State, 21 Tex. 734; Cain v. State, 20 Tex. 355; Dickinson v. State, 38 Tex. Cr. R. 472, 41 S. W. 759; Ex parte Cox, 53 Tex. Cr. R. 240, 109 S. W. 369.
    Argument: The act of 1899, an act entitled “An act to promote agriculture and stock-raising and to prohibit the hunting with firearms or dogs upon inclosed and posted lands of another,” etc., was assuredly intended by the Legislature to amend and amplify the Acts of 1885, c. 85, which act was brought forward by revisors of 1895 and known in the Revised Penal Code as article 804, and it would not be contended that, under a prosecution for a violation of the act of 1899, the defendant could plead as a defense the proviso of article 804 that the inclosure where he hunted contained 2,000 acres (as the evidence in this case shows the inclosure to contain 8,000 acres of land), because the subject-matter of the act of 1899, to wit, hunting on the inclosed lands of another, did not limit the inclosure to 2,000 acres, for it provided what was inclosed land and how inclosed, and provided in section 3 of said act: “No person shall be liable to the penalty,” unless the owner posted his lands as therein required. And while not raised as a question of law before the lower court, counsel here, by parenthesis, wishes to say to the court that he is of the opinion, under the case of Jannin v. State, 42 Tex. Cr. R. 631, 51 S. W. 1126, 96 Am. St. Rep. 821, the act of 1899 was unconstitutional and void, which is here submitted to the court if they deem it proper to consider that phase of the act. Now the act of 1903 seems to have amended article 804 of Revised Statutes of Texas, Penal Code, and for the first time in the history of the hunting and fish law, excluded “posting” as a prerequisite to the enforcement of that law, possibly from the opinion in the Jan-nin Case. At any rate, posting is left out, which would make it a violation of the law per se for a person to hunt upon the inclosed lands of another where the inclosure was less than 2,000 acres. The exact subject-matter, that of hunting with firearms upon the inclosed lands of another, of the act was considered by the Legislature when enacting the act of 1903 as was considered in the act of 1899, as well also as article 804 of the Revised Penal Code of 1895. That being the case, as said in Stebbins v. State, 22 Tex. App. 32, 2 S. W. 618, when a new statute in itself comprehends the entire subject and creates a new law, . an independent and entire system respecting the subject-matter, it is universally held to repeal and supersede all previous systems and laws respecting the same subject-matter. In the case of Ex parte Cox, opinion by Judge Ramsey, the court held the act of 1903 to be a valid act; being then a valid act and a later act than the 1899 act, containing the same subject-matter of legislation as the act of 1903, was by implication a repeal of all previous acts upon the subject-matter of hunting and fishing, etc., and no prosecution can be sustained under a repealed law. Again, the Penal Code was revised in 1911, and the codifiers, being instructed to bring forward in the revision all articles that are not repealed, evidently considered the act of 1899 a repealed law, for they, the codifiers, brought forward the act of 1903 as article 1255 of the Revised Penal Code, which Penal Code was adopted by the 32d Legislature as revised as the Penal Laws of Texas, thereby and through the act of adoption of the new Code, repealed all laws not therein contained; hence appellant insists his conviction is void, and asks this court to reverse and dismiss the case.
    Second Assignment: Appellant asks the court to consider same as having been considered in sections A and B of the first assignment, as the-propositions and statements go to the same issue that would be raised by the second assignment.
    C. E. Lane, Asst. Atty. Gen., for the State.
    The court below did not err in refusing to quash the information and affidavit filed in this cause, for the reason that the act of the Legislature of 1899, page 173, General Laws, is an act to promote agriculture and stock-raising, etc., and to prevent hunting with firearms or dogs upon the inclosed and posted lands of another, etc.
    Section 4 .of the act provides that same is not to be construed as to repeal the law relating to inclosures of 2,000 acres. Said act also exempts certain counties, same being a special law on the matter.
    Tlie Acts of 1903, page Y59, which appellant claims is in conflict with the act of 1899, is a general law; same being an amendment to articles 804 and 805 of the Penal Code of 1895. The act makes it an offense to “enter the inclosed lands of another * * » and therein Imnt with firearms or therein catch or talce any fish * * * or in any other manner depredate upon the same.'” It also provides that same shall not apply to inclosures containing over 2,000 acres.
    Both acts can exist at one and the same time.
    Authorities; Revised Pen. Code 1895, arts. 804 and 805; Acts 26th Leg. 1899, p. 173; Acts 28th Leg. 1903, p. 159; Acts 28th Leg. 1903, p. 193; Braun v. State, 40 Tex. Or. R. 236, 49 S. W. 621, and eases cited; Ex parte Keith, 47 Tex. Cr. R. 283, 83 S. W. 685; Parshall v. State, 62 Tex. Or. R. 177, 138 S. W. 759; State v. Duke et al. (Sup.) 137 S. W. 654; Cyc. vol. 36, page 1095 (section P).
    Argument: It seems to be a general rule of law, and a well-established rule in our state, that repeals by implication are not favored, and further that every effort must be used by our courts to make all acts stand, if by any reasonable construction they can be reconciled. It is frequently found that the conflict between two statutes is apparent only, as their objects are different, and when the language of each is restricted to its own object they run in parallel lines without meeting; this avoiding all conflict between the two. Furthermore all laws are presumed to be passed with deliberation and full knowledge of all existing laws on the subject, and it is but reasonable to conclude that in passing the statute it was not intended to interfere with or abrogate any former law relating to the same matter, unless the later act fully embraces the subject-matter of the earlier.
    The act of 1899 has reference to hunting with firearms or dogs on the inclosed and posted lands of another. Among other mat-' ters it requires ownership to be proved, it excepts bona fide travelers traveling along a public road, and it requires the owner to post his inclosure. The act only applies to inclosures containing over 2,000 acres, and it also only applies to certain counties in the state.
    The act of 1903 has reference to hunting and fishing in inclosures containing less than 2,000 acres and applies to the whole state.
    Also, to further show that the Legislature in 1903 did not intend to repeal the act of 1899, on page 193 of said Acts of 1903 will be found an amendment to the act of 1899, and by such amendment they recognized the same as a valid and existing law.
    Appellant contends that the omission by the codifiers of the act of 1899 from the 1911 Penal Code repealed the said act of 1899 and that same no longer exists.
    Under the Acts of the 31st Legislature, page 130, commissioners to be appointed were required to bring forward all laws that had not been repealed or amended into a new Code. The result of this is the Penal Code of 1911.
    The Legislature in 1911, in adopting the Penal Code of 1911, did not repeal or do •away with any existing laws not mentioned in the Code.
    Authorities: Hammer v. State, 173 Ind. 199, 89 N. E. 850, 24 L. R.- A. (N. S.) 795, 140 Am. St. Rep. 248, 21 Ann. Cas. 1034; 36 Cyc. page 1081 (b) Codification, and cases cited; enacting and repealing clauses, Codes of 1895 and 1911.
    Argument: We believe that, had the Penal Code of 1911 been adopted in like terms and manner as the Penal Code of 1895, the above proposition might not be sound, and we would be thrown entirely on our second proposition, hereinafter set out; but let us compare these two Codes and the sections under which each were enacted, in order to get at the intention of the Legislature and see whether the act of 1899 was repealed.
    It will be seen that the caption and section 1 of the Penal Code of 1895 and the Penal Code of 1911 are identical.
    Section 3 of the Code of 1895 (last page of index to Code of Criminal Procedure) provides that “all penal laws and all laws relating to criminal procedure that are not embraced in this act * * * be and the same are hereby repealed.”
    Section 3 of the Penal Code of 1911 has reference only to annotations shown in the Code.
    Section 4 of the Code of 1911 (page 325, Code Criminal Procedure) is as follows:
    “Nothing in this act shall be construed or held to repeal, or in any wise affect, the validity of any law or act passed by this Legislature in its regular session.”
    If it was the intention of the Legislature to repeal all penal laws not embraced in this act, then, as they were evidently copying from the sections of the 1895 Code, why did they not add the repealing clause in section 4 of the 1911 Code.
    At the best therein being no direct repeal of existing laws not embraced in the 1911 Code, same could only be construed as a repeal by implication, and it is a well-settled rule in all states of our Union that such repeals are not favored.
    The 32d Legislature in its regular session (Acts of 1911, page 90) amended the act of 1899, by amending section 6 of said act, thus recognizing same as a valid and existing law, and from said Acts of 1911, page 90, we can then go to the original act as passed by the 26th Legislature (Acts of 1899, page 173).

      Authorities: Braun v. State, 40 Tex. Cr. R. 236, 49 S. W. 620; State v. Duke et al. (Sup.) 137 S. W. 654; Dickinson v. State, 38 Tex. Cr. R. 472, 41 S. W. 759; Cyc. vol. 36, page 1058; Code Cr. Proc. 1911, p. 325, § 4.
    Argument: When the Legislature of 1911 amended the act of 1899, they plainly showed that they recognized the act of 1899 as being in full force and effect and a valid and existing law.
    Now, what law was it intended to place Atascosa, Caldwell, Coke, etc., counties under the operation of? To determine this question we cannot only look to the chapter itself, but we can look back to the provisions which constituted said chapter as they formerly existed.
    And in this connection it is expressly provided in said section 4 of the 1911 Code that same is not to affect validity of any law or act passed by said 32d Legislature.
    And in conclusion we must not get the act of 1885 and its amendments confused with the act of 1899 and its amendments, nor must we confuse the constructions placed by our courts on the 1895 Code with our Code of 1911.
    And, further, we would like to call the attention of the court to an opinion on this matter of Denman, Franklin & McGown, adopted last November by Jas. D. Walthall, Attorney General; also to an opinion on this matter rendered by Judge Looney, Attorney General, as to the existence of said act of 1899.
    Opinion of Attorney General:
    “January 17, 1913.
    “Mr. W. T. Magee, Pearland, Texas — Dear Sir: In your letter of January 11, 1913, you state that you own a pasture containing 6,081 acres, and you desire to know whether you can post the pasture, and thus prevent people from hunting and fishing' therein.
    “We have given this question careful consideration, and for your information we will state that the only law on this subject embraced in Rev. Pen. Code 1911 is article 1255, which reads as follows:
    “ ‘Any person who shall enter upon the inclosed lands of another without the consent of the owner, proprietor or agent in charge, and therein hunt with firearms, or therein catch or take any fish from any pond, lake, tank or stream, or in any other manner depredate upon the same, ■ shall be ■punished by fine not less than $10 nor more than $100: Provided, that this article shall not apply to inclosures including 2,000 acres or more in one inelosure.’
    “This statute is general in its terms and applies to every county in Texas.
    “The first act on this subject was the act of March 31, 1885. The only difference in the Acts of 1885, c. 85, and the above-quoted statute, is this: The act of 1885 required the inclosure to be posted at each entrance thereto, but said act exempted inclosures of 2,000 acres or more just as the above-quoted statute.
    “The next act on this subject was the act of May 1, 1893 [Acts 1893, c. 67]. This act also carried with it the requirement of posting, but likewise exempted all inclosures exceeding an area of 2,000 acres.
    “In 1903 the Legislature again amended this law, and enacted the statute first above quoted, which is now the law.
    “The word ‘posted’ was dropped from this statute in 1903, and so far as this statute is concerned it is now unlawful for any person to enter upon the inclosure of another without consent, and therein hunt with firearms, or therein fish, etc., provided the inclosure does not include 2,000 acres or more. When the' inclosure embraces less than 2,000 acres, the law does not require that same shall be posted.
    “The Legislature of 1899 enacted another statute for the protection of agriculture and stock-raising, which reads as-follows: ‘That it shall be unlawful for any person or persons knowingly to hunt with firearms or dogs upon the inclosed and posted lands of another, without the consent of the owner thereof, where such lands are in use as agricultural lands or for grazing purposes, having cattle, horses, sheep or goats herding or grazing thereon.’ Said section defines fully what is meant by inclosed lands. Section 2 of said act provides the punishment. Section 3 of said act is as follows: ‘No person shall be liable to the penalty prescribed in the preceding article unless the owner or proprietor of such inclosure shall at each entrance thereto keep a notice in a conspicuous place, with the word “Posted” plainly marked thereon, which shall constitute posting within the meaning of this act.’ Section 4 of said act is as follows: ‘Nothing in this act shall be construed to repeal the present law relating to inclosures of 2,000 acres or less.’ Section 6 of said act exempts quite a number of counties from its provisions.
    “This last act was not intended to repeal any of the provisions of the act relating to inclosures of 2,000 acres or less; but it was evidently the intention of the Legislature that this act should apply to all inclosures including 2,000 or more acres. The owner or agent, however, of such inclosures, is required to post the same. This requirement is not made in cases where the inclosures are less than 2,000 acres.
    “Now this act has never been repealed, and it applies to every county in Texas, except Upton county, unless the failure of the codifiers to incorporate it in the Revised Penal Code of 1911 has the effect of repealing it.
    “For some reason this statute was not brought forward by the codifiers into the Revised Penal Code of 1911, and because of this fact it is contended by some that itois therefore a repealed statute and absolutely without force and effect.
    “The act of the 32d Legislature, adopting the Revised Penal Code of 1911, reads as follows: ‘Section 1. Be it enacted by the Legislature of the state of Texas, that the following titles, chapters and articles shall hereafter constitute the Penal Code of the state of Texas.’ Section 2 contains a similar declaration with reference to the Code of Criminal Procedure. Section 3 reads as follows: ‘It is provided, however, that the annotations under the several articles of the Penal Code and Code of Criminal Procedure shall not be construed to be any part of said either Codes.’ Section 4 reads: ‘Nothing in this act shall be construed or held to repeal, or in ¿ny wise affect, the validity of any law or act passed by this Legislature in its regular session.’
    “In other previous codifications of the laws of this state the act adopting said codifications contained express provisions repealing all laws not contained in said revisions. It is significant that the act of the 32d Legislature adopting the 1911 revision did not contain any such provision. Again, the Acts of the 31st Legislature, p. 130, authorized the Governor to appoint codifying commissioners, and prescribe their duties, and it contains this provision: ‘Said commissioners shall adopt such of the * * * civil and ■criminal statutes as have not been repealed or amended.’ And said act nowhere gives said board of commissioners any discretionary powers regarding the statutes that shall be brought forward in the codification, but they are expressly directed to adopt all laws, civil and criminal, that have not theretofore been amended or repealed.
    “Now if there is nothing in the act creating the codifying commissioners and prescribing their duties authorizing them to repeal any statute, and if there is nothing in the act adopting the revision repealing all laws not contained therein, then it appears clear to us that the mere failure of the commissioners to bring forward a statute and make it a part of the revision could not have the effect of repealing such statute.
    “The intention of the Legislature in creating these commissioners and defining their ■duties, and in failing to give them the authority to omit from their revision any statute, except repealed and amended statutes, is too clear to admit of serious doubt. It •did not undertake to delegate to the commissioners the authority to repeal any law. It ■did not give them any such authority, and when it adopted their work it must have known that in all probability some statute might-have been omitted, and, in order not to strike down some wholesome statute, it did not provide for the repeal of all laws not embraced in said revision, as the other acts adopting previous revisions had done.
    “Simply the omission of a statute from the Revised Penal Code would not evidence the intention to repeal said statute. Repeals by implication are not favored by our courts. In all such cases the legislative intent governs, and we must, therefore, look to the intention of the Legislature in all such matters.
    “Authorities: Ex parte Cox, 53 Tex. Cr. R. 240, 109 S. W. 369; Braun v. State, 40 Tex. Cr. R. 236, 49 S. W. 620; Phipps v. State, 36 Tex. Cr. R. 216, 36 S. W. 753.
    “We therefore conclude that the- act of 1899, above quoted, is a valid statute, even though omitted from the revision, and that it applies to all counties in the state, except Upton county.
    “If you will follow the provisions of that statute with reference to posting your inclosure, then if parties without your consent hunt in same they would be subject to the punishment prescribed in said statute.
    “However, you will notice that this statute does not make it an offense for a person or persons to fish within such an inelosure, even without the consent of the owner or proprietor of same.”
    Denman, Franklin & McGown, Searcy & Browne, and Beásly & Beasly, amici curise.
    Did the act of the Legislature adopting the Criminal Code and Code of Criminal Procedure, enacted,the 11th day of March, 1911, repeal the act of 1899 and the acts amenda-tory thereof, punishing hunting in pastures with firearms, etc.?
    We are of opinion that it did not, and will state succinctly the reasons upon which we base our conclusion:
    Said hunting act, having been once validly enacted, must be held to be still in force unless a legislative intent to repeal it can be pointed out. We admit that such a legislative intent need not necessarily be manifested by express repealing words, but may be deduced or found by the court to exist from cogent circumstances; but such intent must nevertheless have existed in the legislative mind, and the court must find it to have existed either hy express repealing words used by the Legislature, or hy such circumstances as clearly evidenced such intent to have existed in the legislative rn/lnd. It will not be contended that there is in said Penal Code, adopted in .1911, or in any other act of the Legislature, any language expressly, repealing said hunting act, therefore we will not discuss the question of express repeals; but it is contended that the circumstances under which the Code was adopted, taken in connection with some language of the Code, and especially section 4 of the Code in these words, “Nothing in this act shall be construed or held to repeal, or in any wise to affect, the validity of any law or act passed by this Legislature in its regular session,” evidences a legislative un-tent to repeal.any and all laws not included in tlie Code, and therefore the hunting act under discussion. This leads us to examine carefully the circumstances surrounding the enacting of the bill adopting this Code, in order to determine whether such circumstances evidence such legislative intent, for if they do not evidence such intent the law cannot be held to have been repealed.
    In order to prevent confusion and to insure precision of thought, we will state here that the legislative intent that we are seeking for, and must find in order to hold this law repealed, is not that of the Legislature appointing the commission, but of the Legislature which enacted the bill embodying the provisions of the Code of 1911; that is, the Legislature of 1911.
    It may be that an examination of the-terms of the act of the Legislature appointing the commission would have some bearing or throw some light upon the intent of the Legislature of 1911 adopting the-Code; but in the ultimate analysis it is the intent of the Legislature of 1911 adopting the Code, and of that Legislature only, which must be found to exist in order to hold said hunting act repealed. Therefore, if the act of the Legislature appointing the commission had expressly provided that the Code, when prepared by it, should or should not be the sole law of the land, such provision would not have been binding upon the subsequent Legislature of 1911 when it came to adopt the Code into law, and we would again have been brought to the proposition above stated — that in order to hold said act repealed we must find an intent on the part of the Legislature of 1911 to repeal said act.
    The circumstances from which a legislative intent to repeal a law may be deduced are so varied that it is impracticable to state any general principle which would control every case. Each case must be made the subject of a special examination of its given facts, to determine whether such intent existed in the mind of the Legislature in such case; therefore much confusion and inaccuracy of thought and consequent illogical deduction may be brought about by undertaking to rule a given ease by other cases. Such other cases can only be looked to in order to determine the process of reasoning which legal minds have followed in such investigations ; but, after all has been said and read, the court, looking for the legislative intent in the case under consideration, can only use the decisions of other courts as general guides, and not as of binding force, for rules of construction are not rules of law,-binding upon the courts, but are mere aids to assist the court in determining the intent. If the court is of opinion that such rules lead them right in the particular 'case, they are at liberty to follow them; if not, it is their duty to override them and find the true legal intent.
    What are the circumstances surrounding the enactment of the Code of 1911? For we may read this law in the lig¡ht of the circumstances under which it was enacted, and under that light we must search for the intent of the Legislature of 1911, in order to deter-' mine whether the hunting law of 1899 has been repealed.
    It will be observed that the acts of the Legislature adopting and constituting the Codes of 1857, 1879, and 1895 each contain a repealing clause expressly repealing all acts of previous Legislatures not included in such Codes, with the exception of the acts of certain specified Legislatures, and it will be •observed that the language of each of said three repealing clauses is practically the same, showing that it was the intention of the Legislature in each instance to generally repeal all omitted laws.
    Now, if the Legislature of 1911, in adopting the Code of that year, had had the intention to repeal all omitted laws, as the previous Legislatures had, it would have been in due course and perfectly natural for them to have used the same language the previous Legislatures had used in order to effect the intent of repealing all omitted laws. There could be no doubt about' the meaning of the language used by said three previous Legislatures. The language of said repealing clause in the Acts of 1895 was in the following words: “Sec. 3. Be it further enacted, etc., * * * that all penal laws and all laws relating to criminal procedure in this state, that are not embraced in this act and that were not enacted by the Twenty-Third Legislature, and have not been en-. acted during the present.session of this Legislature, be, and the same are hereby, repealed.” And the language of the repealing clause in the two previous Codes was equally express and explicit.
    Now, when the Legislature of 1911 came to consider the repealing clause, it did not adopt the language used by the three previous Legislatures, expressly repealing all omitted laws, but entirely omitted any repealing language, and in the language quoted above said: “Nothing in this act shall be construed or held to repeal or in any wise affect the validity of any • law or act passed by this Legislature in its regular session.” It will be noted that there are no words here expressly repealing any omitted law. No reference is máde to omitted laws, and the fact that the Legislature omitted to use language expressly repealing omitted laws, as the previous Legislatures had done, is a strong circumstance indicating that it did not have the same intent in reference to omitted laws as had former Legislatures. It was competent for the Legislature to decline to pass on the question of whether they would repeal all omitted laws, and it is reasonable that they should have declined to repeal them,- because they may not have known just what had been omitted, and it must be taken for granted that the Legislature knew that confusion had resulted in reference to merely omitted laws by reason of the strong repealing clauses in the previous Codes, therefore the Legislature exercised its legal right and power to decline to express itself upon omitted laws, leaving to the courts the question of construction as to what laws were repealed or modified, and what laws were not repealed or modified, by the Code; and it must be admitted that, without the Legislature using any repealing language in the Code, previous laws might be repealed by the provisions of the Code, or might be modified by its provisions under well-settled rules of construction — i. e., a previous criminal law would be repealed if the Code contained another law on the subject completely dealing with and disposing of the subject-matter; for the presumption would be that the Legislature, having completely dealt with the subject in the Code, intended to repeal any previous law on the subject, and if a provision of the Code dealt partially with the subject-matter of the previous criminal statute, but hot completely, such latter provision of the Code might be held to qualify- or modify or amend the previous law on the subject, and other instances too numerous to mention will suggest themselves to the legal mind. Doubtless some would suggest that it would have been better for the Legislatures to have said whether they intended to repeal previous laws or not. Our answer to this is that we are not discussing that question. That was a matter for the Legislature to determine. It is only pertinent to this discussion to say that the Legislature had the power and the right to determine for itself whether it would undertake to relieve the courts of the difficulties of construction as to what previous laws had been repealed or modified by implication, and it decided not to relieve the courts, but to leave such matters to them by refraining from the use of any language which can be construed as a repealing clause affecting omitted laws. But why did the Legislature use the language which is contended by some as being equivalent to a repealing clause, to wit: “Nothing in this act shall be construed or held to repeal or in any wise to affect the validity of any law or act passed by this Legislature in its regular session.” We confidently assert that this language was not intended in any sense as a repealing clause, but that it was intended for and is perfectly effective.to accomplish an entirely different result, and, being intended to accomplish a different result, cannot be construed into a repealing clause by implication. We contend that the Legislature, having expressly declined to adopt the repealing clauses of former Codes, passed over the question of repeal, and left that matter to construction as above indicated, and that they took up an entirely different subject, and for an entirely different purpose used the language just above quoted, and we will now call the court’s attention specially to this language and its proper place and classification in the legal history of the state.
    In the case of Cain v. State, 20 Tex. 358, to which we refer, the court, in discussing the question as to whether a provision of a Code adopted- at a given session repealed the provisions of a criminal act adopted at the same session on a previous day, said: “The rule is that in the construction of acts of the same session the whole must be taken and construed as one act, and to make a later provision repeal a former there must be an express repeal or an irreconcilable repug-nancy between them, and then the latter will control.”
    Under the rule thus announced, if the provision of the Code adopted toward the latter part of the session of the Legislature should conflict with a criminal law passed by the Legislature at the same session on a previous day, the provision of the Code would repeal the former law. Thus it had been held by the Supreme Court in said case in an opinion by Mr. Justice Wheeler, and no doubt the rule thus announced is sound.
    Again, if a provision of the Code adopted at the latter part of a session of a Legislature should not be wholly inconsistent with any act of that Legislature, so as to repeal it, its language would have to be construed in connection with the act of the Legislature, one modifying the other; and by construction the. court would be forced to determine the true intent of the Legislature as thus expressed in its different acts at the same session relating to the same subject. But the Legislature of 1911 did not intend that the rule laid down in the Cain Case should apply in construing the Code, when any of its provisions should come into direct or partial conflict with the acts passed by the Legislature o'f 1911, in its regular session; but they expressly provided that nothing in the Code should be construed by the courts or held by them either to repeal or to in any way affect the validity of any act of the Legislature of 1911 passed at its regular session. The Legislature thus reversed the rule of construction in the Cain Case, and laid down the rule that the acts of the Legislature of 1911 passed at its regular session should not in any case be repealed or affected by any provision of the Code. Therefore, under this new rule of construction laid down for this particular Code and the acts of 1911 at the regular session, an act of the Legislature of 1911 passed before the adoption of the Code would take precedence over a provision of the Code that might be wholly inconsistent with it. - Therefore it is clear that section 4 above quoted is a rule of construction merely, and sets aside the rule in the Cain Case as to said Code and the acts of the regular session of the Legislature of 1911; and, having that specific object and that specific application, it would be wholly illogical and unwarrantable to treat it as a repealing clause, destroying the validity of acts of previous Legislatures which were not included either in the Code thus being adopted or in the act of the Legislature of 1911. To treat it as such repealing clause would be creating an intent for the Legislature which it did not have, would be applying a statute having a plain, simple object in view to an object wholly foreign to the mind of the Legislature in its enactment, would be a striking down by the courts of important laws which the .Legislature had not seen fit to strike down, and which it only has the lawful right to do.
    Again, the Legislature, in the use of the language in said section 4 of the Code of 1911, expressly says that nothing in the Code shall be construed or held to repeal or in any wise affect the validity of any law or act passed by that Legislature. It has thus declared a specific intent that nothing in the Code, no language therein contained, shall be so applied or construed by the courts as to repeal or affect any act of that Legislature; that is, the Legislature of 1911. This expressed intent must be given effect. Then how can it be held that the act of the Legislature, passed on the same day the Code was adopted, amending said hunting law of 1899, was in effect repealed or prevented from taking any effect or modified by anything in the Code? How can it be held that said provision of the Code, which expressly gives to all acts of the Legislature of 1911 precedence over the Code, effected a repeal or prevented the taking effect of said act of the Legislature of 1911, passed on the same day, amending and applying to new counties said hunting law? It would seem that such á contention is a legal impossibility. If a provision of the Code should be found inconsistent with said act amending the hunting law, passed the same day the Code was passed, it is clear that said section 4 of the Code shows a legislative intent that said amending law shall take precedence.
    We submit that we have demonstrated that there is no intent of the Legislature expressed or deducible by fair construction to repeal any omitted law, and especially said hunting act of 1899; but we contend that there is found in the act of the Legislature of 1911 an expressed intent that said hunting act shall continue in full force and effect, for this: That said provision of the Code shows that the act of the Legislature of 1911 at its regular session shall have precedence over any provision of the Code, and that the Legislature thereby expressed an intent that any other Taw it passed at that session should take effect as fully and completely as if the Code had not been enacted, and that by passing said act amending the hunting act of 1899 on the same day the Code was passed was evidenced, an unmistakable intent on the part of the Legislature that the hunting act, with all its amendments, should continue in effect notwithstanding the Code or any of its provisions. We have thus an expressed intent of the Legislature that the hunting act should continue in effect, for this amending act must be read together with the Code, giving its provisions precedence over the Code under the legislative rule of construction laid down above, and when it is so read the legislative intent that the hunting act shall continue in effect is expressed, and not left to construction or implication.
    In conclusion, we respectfully submit that the mere omission from the Code of previous laws does not necessarily repeal or modify them; but whether they are repealed or modified must be left by the Legislature to be worked out by the courts under the ordinary rule of construction, and that, there being nothing in the Code dealing with the subject-matter of said hunting law of 1899, it could not be construed to have been repealed, and that by reason of said amendment of said hunting law of 1899 the legislative intent that it should continue in force was placed beyond question.
    We consider the above argument as conclusive of the question, but in closing we wish to remark that it is evident that the provisions of chapter 1 of title 1 of the Code were not intended as repealing clauses, for they all had other and distinct purposes, and in the original Codes they were not so treated, because there were express repealing clauses as above indicated.
    We submit the following authorities as bearing more or less on the principles usually applied in determining such cases, but not claiming that they are directly in point in this particular case for the reasons above discussed: State v. Cunningham, 72 N. C. 476; State v. Burgess, 101 Tex. 524, 109 S. W. 922; Commonwealth v. Grinstead, 108 Ky. 59, 55 S. W. 723; Conley v. Commonwealth, 98 Ky. 125, 32 S. W. 287; Wetzell v. City of Paducah (C. C.) 117 Fed. 647; Bird v. Sellers, 122 Mo. 23, 26 S. W. 668; Hubbard v. Gates, 228 Mo. 610, 129 S. W. 4; Clark v. State, 171 Ind. 104, 84 N. E. 984, 16 Ann. Cas. 1229; Hammer v. State, 173 Ind. 199, 89 N. E. 850, 24 L. R. A. (N. S.) 795, 140 Am. St. Rep. 248, 2Í Ann. Cas. 1034.

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

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

   HARPER, J.

Appellant was prosecuted and convicted of hunting in inclosed lands of another, said inclosure being posted and containing more than 2,000 acres. Appellant admitted that the pasture was inclosed, posted, and contained more than 2,000 acres of land in the inclosure; his whole contention being that no law of this state made it an offense to hunt in such an inclosure.

His first contention is that the act of the Legislature of 1899 repealed article 804 of the Penal Code (Acts of 1895), and that the Act of the Legislature of 1903 repealed ■the act of 1899. By reference to the acts it will be seen that article 804 of the Code of 1895 did not apply to inelosures of 2,000 acres or more (article 805). The act of 1899 specifically states in section 4 that it does not repeal articles 804 and 805 of the Code of 1895, and section 2 of the act of 1903 ■specifically provides that it does not apply to inelosures containing 2,000 acres or more. So the first contention cannot be sustained, and we find that the laws of this state in 1903 provided that one who shall hunt within the inclosed lands of another, containing less than 2,000 acres, without the consent ■of the owner, shall be punished by a fine not less than $10 nor more than $100, while one who shall hunt within the inclosed lauds of another, containing more than 2,000 acres, without the consent of the owner, which land has been posted, shall be punished by a fine not exceeding $200; the distinction in the two acts being that in inclosed lands ■of less than 2,000 acres the lands need not be posted, while in inelosures of 2,000 acres or more, at each entrance, the owner must conspicuously notify the public that it is “posted” — the punishment varying. This is -a proper distinction and classification, and neither act repealed the other.

The other question raised may 'be said to be one of more difficulty. In 1909 (Acts 1909, c. 75) the Legislature provided for a codification of the laws; but no one, we think, can contend that the Legislature conferred on this codifying board or commission power or authority to enact or repeal any law, and it did not attempt to do so. The only ■question in this case is whether the Legislature, in adopting the report of this codifying board or commission, did repeal any law theretofore legally adopted by the Legislature. The codifying commission brought forward in the Code arranged by them the act of 1903, and numbered it article 1255, and entirely omitted from this Code, so prepared, the act of the Legislature of 1899,. which applied to inelosures containing 2,000 acres or more. In 1911 the Legislature enacted this Code by bill, providing:

“Section 1. That the following titles, chapters and articles shall hereafter constitute the Penal Code of the state of Texas.”

“Sec. 4. Nothing in this act shall be construed or held to repeal, or in any wise affect, the validity of any law or act passed by this Legislature in its regular session.”

Thus it is seen that the laws passed by the Legislature assembling in January, 1911, were specifically exempted from repeal, but no other acts were so spécifically exempted. The act punishing hunting or fishing on the inclosed posted lands of another, containing 2,000 acres or more, was passed in 1899, ■and the Code prepared by the codifiers and adopted by the Legislature in 1911 did not in any provision thereof deal with hunting on inclosed lands of another of 2,000 acres or more. The Code or bill as enacted did not specifically repeal this law; but it did provide that the “.titles, chapters, and articles shall hereafter constitute the Penal Code.” Thus it is seen that, if the act of 1899 is repealed, it is repealed by implication, and by no specific provision of the Code or act of the Legislature. No one had the authority to repeal, except the legislative body of this state. ■

In that excellent work, Cyclopedia of Law, vol. 36, page 1071, it is said: “A Legislature may express its will in any form— affirmative or negative — that it pleases, so long as it does not transgress constitutional prohibitions. It is under no obligation to use words of express repeal. But the repeal of statutes by implication is not favored by the courts. The presumption is always against the intention to repeal where express terms are not used. To justify the presumption of an intention to repeal one statute by another, either the two statutes must be irreconcilable, or the intent to effect a repeal must be otherwise clearly expressed. It follows that, where the intention not to repeal is apparent or manifest from an act, there is no room for repeal by implication, or the application of rules regarding implied repeal” —citing authorities from Alabama, California, Colorado, Georgia, Illinois, Indiana, Iowa, Kentucky, Louisiana, Massachusetts, Michigan, Mississippi, Missouri, Nebraska, New Jersey, New York, North Carolina, Pennsylvania, Tennessee, Virginia, Washington, Wisconsin, and other states, showing that the great weight of authority favors the rule as thus announced.

In American & English Encyclopedia of Law, vol. 26, p. 717 et seq., it is said: “An express repeal of a statute may be accomplished, as the term implies, only by positive enactment. Therefore a recital in the title of an act that its purpose is to repeal a previous act is not of itself sufficient for that purpose, because the title is not an operative part of the act There must be a repealing clause in the body of the statute. But, inasmuch as the question of repeal is always one of legislative intent, an express declaration that a particular statute is repealed will not be given effect where it is apparent that the Legislature did not so intend. Where an act is passed covering the whole of a particular subject or field of legislation, it is customary to insert a general clause repealing .‘all acts or parts of acts inconsistent therewith,’ and such a clause is effective in repealing inconsistent enactments, in the absence of any constitutional prohibition against such method of repeal; but the repeal extends only to those acts on the same subject, or parts of such acts, clearly inconsistent and irreconcilable with the provisions of the repealing act, and only to the extent of the conflicting provisions. A statute is repealed by implication, whenever it becomes apparent from subsequent legislation that the Legislature does not intend the earlier act to remain in force, and the converse of this proposition is that no statute will operate as, an implied repeal of an earlier statute, if it appears that the Legislature did not intend it so to operate. Though repeal by implication is not favored, it necessarily results in any case of repugnancy or inconsistency between two successive statutes, or in any case where the intention of the Legislature is manifest that a later statute should supersede an earlier one. Repeals by implication are not favored, and will not be indulged, unless it is manifest that the Legislature so intended. As laws are presumed to be passed with deliberation and with full knowledge of all existing laws on the subject, it is but reasonable to conclude that in passing a statute it was not intended to interfere with or abrogate any former law relating to the same matter, unless the later act is either repugnant to the earlier one, or fully embraces the subject-matter, thereof, or unless the reason for the earlier act is bej'ond peradventure removed” — citing authorities from almost every state in the Union.

There being in the Code of 1911 no express repeal of the act of the Legislature of 1899, and no provision of the Code of 1911 dealing with the subject of the act of the Legislature of 1899, we are of the opinion that the act of the Legislature, adopting the codification of the laws as prepared by the commission, did not repeal the act of 1899, and it is still in full force and effect. Had the act of the Legislature in adopting the codification contained an express repealing clause, or had the Code as thus adopted dealt with the subject of hunting in inclosures containing 2,000 acres or more, a more diiheult question might have been presented. But as the Code prepared by the codifiers does not deal with this subject, and there is no express repealing clause contained in the act adopting this Code, we are of the opinion that the act of 1899, punishing persons for hunting in the inclosed posted lands of another, containing-2,000 acres or more, has not been repealed, and the act of 1899 is in full force and effect, and, being of this opinion, the judgment is affirmed.

Excellent briefs have been filed in this case by Denman, Franklin & McGown and Searcy & Browne, and they have been of very material aid to us, and they will be published in connection with this opinion.


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    Ex parte FINNEY.
    (Court of Criminal Appeals of Texas.
    April 30, 1913.)
    Bail (§ 43) — Right to Bail — Homicide.
    Where relator went to the place of the homicide to make trouble, and there shot deceased while she was endeavoring to get him to leave the premises, not accidentally, as he claimed, but intentionally, he was not entitled to bail.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. §§ 153-164; Dec. Dig. § 43.]
    Appeal from District Court, Kaufman County; F. L. Hawkins, Judge.
    Habeas corpus by John Finney for bail. From an order denying bail, and dismissing the writ, relator appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

In this case relator had an examining trial, and was remanded to the custody of the sheriff; the court holding that no bail should be allowed. - Pie sued out a writ of habeas corpus before Hon. F. L. Hawkins, Judge of the Fortieth Judicial District, and the evidence adduced on the examining trial was submitted as a statement of the evidence in the case. Upon a hearing he was refused bail, from which order he prosecutes this appeal to this court.

" The evidence would show that relator and May Nelson, deceased, had been sweethearts, and that ‘‘the course of true love did not run smoothly,” and they had quarreled. Deceased was a teacher in the public schools at Terrell, and relator, prior to this homicide, resided in said town and bore a good reputation for being a peaceable and law-abiding citizen. On the day of the homicide deceased was escorted to church by another colored man. When relator witnessed this, he remarked he was going up to the Nelson home “and raise hell.” That afternoon deceased and the colored man who escorted her to church, in company with others, were in a room at the Nelson home conversing, when relator appeared on the scene. He asked Walter Johnson, who was seated on the piano stool, and who had escorted deceased to church, if he would not shake hands with him. When Johnson offered to shake hands, relator caught hold of his hand and jerked him off the piano stool. Deceased then requested relator to leave the premises. He started out through the house, deceased following him. The state’s testimony would show that, without just cause or provocation, relator shot deceased twice, inflicting fatal wounds; that witnesses then undertook to take his pistol from him, when he fired his pistol twice more, but inflicted no further wound.

Relator ran from the house, and stated to his mother, Anna Finney, “that they all jumped on him, and was fighting me, and May (deceased) was shot accidentally.” The nature of the wounds received by deceased, their range, and the whole facts and circumstances in the case, would show that it was no accidental shooting; and under the evidence adduced on this hearing we do not think the court erred in refusing relator bond.

Judgment affirmed.


author: PRENDEItGAST, J.

text:
    HALEY v. STATE.
    (Court of Criminal Appeals of Texas.
    April 16, 1913.)
    1. Criminal Law (§ 1111) — Bills or Exceptions — Qualification by Presiding Judge — Effect.
    Accused who accepts bills of exceptions as qualified by the judge is bound thereby.
    [Ed. Note. — Eor other cases, see Criminal Ijaw, Cent. Dig. §§ 2894-2S96; Dec. Dig. § 1111.*]
    2. Larceny (§ 43) — Evidence — Admissibility.
    Where accused was on trial for the larceny of horses delivered to prosecutor as a pledge to secure the release of a mortgage on a chattel awarded to prosecutor on the dissolution of the firm in which the parties were partners, evidence as to the formation of the firm and as to accused’s representations that the chattel was not incumbered was admissible.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 130, 133; Dec. Dig. § 43.]
    3. Criminal Law (§ 1091) — Bill of Exceptions — Sufficiency.
    A bill of exceptions on appeal from a conviction for horse theft, which showed that while prosecutor was testifying and was being cross-examined he vvas asked whether it was not a fact that accused had brought a civil action for the possession of the alleged stolen property before the finding of the indictment, that the court sustained an objection to the question, and that, if the witness had testified he would have shown that the civil action was still pending, was insufficient to require the court on appeal to review the ruling.
    [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.]
    4. Criminal Law (§ 413) — Evidence—Self-Serving Declarations.
    Accused on trial for horse theft may not show that long after the commission of the alleged offense he brought a civil action for the recovery of the alleged stolen property.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 928-935; Dec. Dig. § 413; Larceny, Cent. Dig. § 141.]
    5. Criminal Law (§ 7419 — Instructions — Weight of Evidence.
    An instruction on a trial for horse theft that if accused had delivered the horses to prosecutor as a pledge for a debt, and if accused fraudulently took from the possession of prosecutor the horses without his consent, and with the intent to deprive him of their value, he was guilty, was not objectionable- as on the weight of the evidence, where the court correctly charged the general theft statute, and correctly stated the law of presumption of innocence and reasonable doubt.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1138, 1221, 1705, 1713,1716, 1717, 1727, 1728; Dec. Dig. § 741.]
    6. Criminal Law (§ 1159) — Evidence—Verdict — Conclusiveness.
    A conviction on conflicting evidence, but sustained by evidence, if believed and rendered under proper instructions, will not be disturbed on appeal.
    [Ed. Note. — For other cases, see Criminal Cent. Dig. §§ 3074-3083; Dec. Dig. § 1159.]
    Ap-peal from District Court, Coryell County; J. H. Arnold, Judge.
    Luke Haley was convicted of horse theft, and he appeals.
    Affirmed.
    B. F. Moore and J. W. Stinnett, both of Gatesville, 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

   PRENDEItGAST, J.

Appellant was convicted of horse theft, and his penalty fixed at two years in the penitentiary.

The indictment alleges that on November 15, 1910, H. E. and J. B. Preston sold to said Haley a certain hearse and at the time Haley executed to them a note for $400, and also a mortgage on said hearse to secure the paymeAt of said note; that afterwards said Prestons transferred said note and mortgage to W. J. Boykin; that, while said mortgage and note were subsisting and valid, Haley sold said hearse to M. B. Bowie, but was himself to pay off said mortgage and get said hearse released therefrom. Said Haley placed in the possession of said Bowie two of his, Haley’s, horses to be held by Bowie as a pledge until Haley should procure from Boy-kin a release of said mortgage; that on September 27, 1911, Haley without procuring said release unlawfully and fraudulently took said horses from Bowie’s possession, without Bowie’s consent,' and with the intent to deprive Bowie, of the value thereof and of the value of his said pledge and security, and with the intent to appropriate said horses to the benefit of him, the said Haley.

Under our statute (P. C. art. 1329), “ ‘Theft’ is the fraudulent taking of corporeal personal property belonging to another from his possession, or from the possession of some person holding the sanie for him, without his consent, with intent to depifive the owner of the value of the same, and to appropriate it to the use or benefit of the person taking.” And article 1335 provides: “No person can be guilty of theft by taking property belonging to 'himself, except in the following cases: (1) Where the property has been deposited with the person in possession as a pledge or security for debt. * * * (4) In all other cases where the person so deprived of possession is, at the time of taking, lawfully entitled to the possession thereof as against the' true owner.”

Only a brief statement of the evidence is necessary to show the points decided. Prior to February, 1911, Haley had been in the livery business for some time in Gatesville, Tex. At the time in his business he had several head of horses, some rolling stock, including the hearse, some harness, etc. About February 11, 1911, he made a contract with Bowie, by which Bowie put in certain horses he had, paid an amount in cash to Haley, and thereby then acquired from Haley a half interest in all of said property, including said hearse. Bowie testified that at that time Haley told him all of the property was clear, except that he owed $400, and that there was no mortgage on any of the property. Haley testified the same on this point that Bowie did, except that he said he did not then tell Bowie that there was no 'mortgage on the hearse. After this partnership trade between them, they continued the livery business until September 25, 1911, when it was agreed between them' that Haley should take eight head of the horses, Bowie should keep all the balance of the property,, including the hearse, and pay a certain other note owed by Haley, and in addition some cash. That at this time the question came up about the payment of said $400 note and the procurement of a release of said mortgage on said hearse. As a part of the trade of dissolution between them, Haley agreed to pay said $400 note and mortgage on said hearse,, and relieve it entirely of the lien. And to secure Bowie against this note and lien on the hearse Bowie was given a lien by Haley on two certain horses which Haley got in this dissolution of the partnership. There was no difference in the testimony between them on all these points. The disputed questions in the case were whether or not Haley placed said two horses in the possession of Bowie to be field by him and in his possession as a pledge for security until Haley paid off said note and mortgage to Boykin and got a release of said hearse; and whether or not taking the horses from Bowie and carrying them off to Brown county was a fraudulent taking or not. On these two points the evidence was materially conflicting. Bowie testified positively that Haley put and left these two horses in his possession on September 25, 1911, when they closed the trade between them, the possession to be held by him until Haley paid off said mortgage and secured a release of said hearse; and the state introduced other testimony to the same effect, and proved facts and circumstances corroborating Bowie’s testimony. On the other hand, Haley testified that, while Bowie was to have a lien on said two horses to secure him against said mortgage and lien on the hearse, he did not turn over to him the possession of said two horses. He had some testimony and circumstances to corroborate him.

Just shortly prior to this trade between Haley and Bowie, some one had recovered a judgment against Haley in the county court of Coryell county for something over $300 on a debt for which Haley and another were sureties, and he was apprehensive that a levy would be made on his horses or some of them to make this judgment against him. Shortly before this dissolution between Haley and Bowie, and while they were partners, through Haley they made a contract with some show which was to exhibit in Gatesville on the day and night of September 27th, and in the dissolution it was agreed between them that, as Haley had made and was familiar with the trade with the show people, he was to work for Bowie until the show was over, and he did that. In this work with the show the livery outfit and teams were used by the parties, -Haley himself for Bowie, using some of his, Haley’s, horses in this work that day and night, and in that way Haley was in possession of one or the other, or perhaps both, of said two certain horses during that time. Both of them during the day and the early part of that night were in and out and about Bowie’s livery stable during the whole time. Haley had informed Bowie theretofore that because of said judgment against Mm he was going to leave Gatesville at night, but did not tell Bowie what time he was going to leave, nor where he was going. After the show was over Bowie left the stable, going to his home to go to bed, and did do so. This was some time about 11 o’clock at night, and Haley knew this. About the same time that Bowie left for his home, Haley also left the stable for his, but in about a half hour after Borne had left the stable Haley came back to the stable, proceeded to hitch up these two horses which Bowie was to hold as security against said mortgage, against the protest and objection of Bowie’s employé who was at the stable, the employs at the time telling him that he was liable to get into trouble by taking said horses. Haley replied that he knew what he was doing. He thereupon took said two horses out of the stable, left Gatesville with them that night about 12 o’clock without any of the parties knowing where he was going or the direction. He got a companion and traveled all that night with these horses, carrying the six other head that he got in the dissolution of the partnership. He traveled all that night and until about daylight the following morning, when he reached his brother-in-law’s, where he stayed some hours. He then proceeded on his journey for the next two or three days, not in a direct route from Gatesville to Brownwood— these places being 60 miles apart — but in a circuitous and much longer route, reaching Brownwood two or three days later. Immediately after Haley took said horses out of said stable and left with them, Bowie’s em-ployé went to Bowie’s house, and informed him what Haley had done. Bowie at once applied to the sheriff’s department, telling him of the circumstance, and he and the sheriff’s force undertook to locate and arrest Haley. This search and inquiry was kept up for several dajrs, the sheriff sending out notices to the various peace officers in different directions over the state, and among others to the sheriff’s department at Brownwood, describing Haley and the horses. . About a week later the sheriff of Brown county located Haley and said horses at Brownwood, and arrested him and got said two horses. Haley claimed that he intended to return said horses, did not intend to sell them, but intended to sell all of the other six. Haley-never paid said note, and never got the release of said iiearse from said mortgage lien.

Appellant has two bills of exception. The first is as follows: “Be it remembered that upon the trial of the aboye entitled and numbered cause, while M. B. Bowie was on the stand testifying in behalf of the state, he was asked 'by the state to tell and detail the trade that he made with the defendant, when he first came over here with reference to the purchasing an interest in the livery stable with the defendant. To which question the witness answered: ‘Before I moved to Gates-ville, I made a trade with Mr. Haley (the defendant) in which I acquired a half interest in his livery business here in Gatesville. I had nine horses and defendant had ten and his rolling stock, and I gave him $400 in money. Haley had a hearse in the stable that went with the deal. He and I were equal partners in the business in all the horses, rolling stock, including the hearse. . I bought his half interest in February, 1911.’ ” Appellant objected to this testimony because it relates to another and independent transaction between him and Bowie and had no connection with the transaction for which he was being tried, and was irrelevant. The bill further states that appellant was prosecuted for the theft of said two certain horses which he had pledged to Bowie by an independent contract entered into on or about September 27, 1911, and claimed that said testimony could serve no purpose other than to prejudice his rights before the jury. The court in approving this bill did so with this qualification: “I deem it not improper to state that evidence of the above trade between the defendant and Bowie and to which they were both privy was admitted to show how Bowie acquired a half interest in the property in question from Haley. The respective property rights of said parties depended on said transaction, and evidence regarding the same was admissible under the view of the court to properly show such property rights, and to explain how it happened that Haley later pledged the horses in question to Borne.”

The next bill is as follows: “Be it remembered that upon the trial of the above entitled and numbered cause, while M. B. Bowie was on the stand as a witness testifying as a witness in behalf of the state, he was asked by the state: ‘At the time you bought your half interest in the livery business, state what the defendant told you in regard to the property he was putting into the partnership business being clear and free from mortgage?’ The witness answered: ‘Before I made the trade with the defendant, I asked him if there was anything against the property or if he owed anything on it, and he said that he owed $400 on it, but that he could take it up at any time, and I asked him if there was any mortgage against any of it, and he said there was not.’ ’’ Appellant objected to this testimony, because said transaction and statement, if made, were too remote, and relates to another and different transaction from that for which appellant is being prosecuted, and has no connection with the transaction for which he is being prosecuted, and throws no light on it, and is irrelevant, immaterial, and prejudicial to his rights, and could serve no purpose other than an attempt by the state to place him before the jury as a man unworthy of belief; and in an indirect manner attempt to impeach him upon immaterial and collateral matter, claiming that said question and answer had no reference to the original trade made between appellant and Bowie at the time Bowie bought a half interest in said livery in February, 1911, he being prosecuted upon an alleged agreement of pledge of said property entered into between him and Bowie on September 25, 1911. The court in allowing this bill qualified it exactly as he did the one above. It will be seen that neither of these bills nor both together make any such statement of the status of the case and the evidence so as to point out any error. He accepted the bills as qualified by the judge, and is bound thereby. With the qualification the bills point out no reversible error. But, even taking the bills in connection with the record, if we could look to it, in our opinion this testimony was pertinent and admissible.

By another bill it is shown that while said Bowie was testifying in behalf of the state, and after having been examined by the state, and was being cross-examined by appellant, he was asked by him: “Is it not a fact that the defendant has sued you by civil suit for the possession of the horses since the trade and before the finding of this bill of indictment?” To this question the state objected on the ground that the same would be self-serving. The court sustained the objection. The witness would have answered, if permitted, that he had brought such suit, and it was still pending. Appellant claimed that this testimony was material .to his rights and defense, and would throw light upon his good faith in his acts and in his contention that he was entitled to the possession of said horses, and that it would throw light upon the construction of the contract of security, as understood at all times by him, to the effect that he did not at any time intend to part with the possession of said horses. This bill is clearly insufficient under all the rules to require this court to review the question. Conger v. State, 63 Tex. Cr. R. 312, 140 S. W. 1112, and authorities therein cited. However, if we could consider the bill and look to the record, we would see that this suit was brought long after the commission of the alleged offense by appellant and was clearly inadmissible, because, as objected to by the state and sustained by the court, it was clearly self-serving.

In one ground of appellant’s motion for new trial, lie complains that the charge of the court was one on the weight of the evidence. The whole of that ground of his motion is: “Because the court erred in that part of his charge to the jury wherein he charged, meaning defendant, ‘did fraudulently take from the possession of the said M. B. Bowie the said two horses which had been so pledged by said Haley to the said Bowie,’ and in this connection not permitting them by proper words in the charge to determine whether they had been pledged, and erred further in his charge, wherein he charged: ‘To deprive the said M. B. Bowie of the value of said two horses and of the value of his security which had been so pledged.’ Because said charge is upon the weight of the evidence and calculated to mislead the jury, to the prejudicé of the defendant.” The charge of the court first stated the case to them, and that appellant had pleaded not guilty. He then correctly charged our general theft statute, quoting the statute. Then told them no person can be guilty of theft by taking property belonging to himself, except in the case where the property has been deposited with the person in possession, as security for debt. Then submitted the case to them as follows: “Now if you believe from the evidence beyond a reasonable doubt that on or about the 27th day of September, A. D. 1911, in the county of Coryell and state of Texas, the .two certain horses mentioned in the indictment in this case were then and there the corporeal personal property of and belonging to Luke Haley, but that the said two horses had theretofore been deposited with and placed in the possession of the said M. B. Bowie by the said Luke Haley as a pledge or security for a debt so owing by the said Luke Haley to one W. J. Boykin, and that said debt was evidenced by a note and mortgage bearing date the 15th day of November, A. D. 1910, and signed by the said Luke Haley payable to the order of H. E. and J. B. Preston, and transferred by said Prestons to W. J. Boy-kin, and that the said note and mortgage was secured by a valid subsisting lien on that certain hearse mentioned in the indictment, same being the hearse sold by H. E. and J. B. Preston to the said Luke Haley and by Haley sold to M. B. Bowie as alleged in the indictment, and that the two horses mentioned in the indictment had been placed in the possession of M. B. Bowie by the said Luke Haley to be held .by him, M. B. Bowie, until the said Luke. Haley should procure a release from the said W. J. Boykin of the mortgage and lien on the hearse in question, and if you further believe from the evidence beyond a reasonable doubt that the said Luke Haley, without having procured from the said W. J. Boykin a release of the mortgage and lien held by him against the said hearse, did in Coryell county, Tex., fraudulently take from the possession of the said M. B. Bowie the said two horses which had been so pledged by the said Haley to the said Bowie, without the consent of the said M. B. Bowie, and with the intent then and there on the part of him, the said Luke Haley, to deprive the said M. B. Bowie of the value of said two horses, and of the value of his security and pledge and with the intent to appropriate said two horses to the use and benefit of him the said Luke Haley, then in the event you so find you will convict the defendant of theft as charged in the second count in the indictment, and assess his punishment at confinement in the penitentiary for not less than two nor more than ten years.” He also charged the presumption of innocence and reasonable doubt in the standard approved charges on that subject, and told them that, if they had 'a reasonable doubt as to his guilt, to acquit him. In addition and in a separate paragraph, he also charged them: “If you should have a reasonable doubt that the two horses in question had been placed in the possession of M. .B. Bowie as a pledge and security for debt as alleged in the indictment, or that the defendant fraudulently took possession of said horses with the intent to defraud the said M. B. Bowie, and deprive the said M. B. Bowie of the value of his security and pledged property, you will acquit the defendant.” The above is the only complaint appellant has of the whole charge. In our opinion the court’s charge was not upon the weight of the evidence, but was a clear and apt submission of the question to the jury in accordance with the law and the evidence. P. C. arts. 1329, 1335. Duren v. State, 15 Tex. App. 624; Connell v. State, 2 Tex. App. 422; State v. Stephens, 32 Tex. 155.

The only other claimed error by appellant is that the evidence is insufficient to sustain the verdict. We have carefully considered the evidence, and while it is conflicting and would have authorized the jury, if they had believed appellant and his witnesses, to acquit him, still there was ample evidence by the state to authorize the jury to find the defendant guilty as it did. This being a disputed question and properly, fully, and fairly submitted by the court to the jury, we would not feel authorized to set the verdict and judgment aside.

The judgment will therefore be affirmed.


author: H'ARPER, J.

text:
    McCAIN v. STATE.
    (Court of Criminal Appeals of Texas.
    April 23, 1913.)
    Criminad Law (§ 1097) — Appeai^Review— Statement of Facts — Order Denying New Triad.
    An alleged error in overruling a motion for new trial on the ground that the verdict is contrary to the law and the evidence cannot be reviewed in the absence of a statement of facts in the record.
    [Ed. Note. — For other -cases, see Criminal Law, Cent. Dig. §§ 2862, 2864, 2926, 2934, 2938, 2939, 2941, 2942, 2947; Dec. Dig. § 1097.*]
    Appeal from Dallas County Court at Law; W. F. Whitehurst, Judge.
    Bose McCain was convicted of beeping a disorderly house, and he appeals.
    Affirmed.
    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

   H'ARPER, J.

Appellant was prosecuted and convicted of the offense of keeping a disorderly house, and his punishment assessed at a fine of 8200 and 20 .days’ imprisonment in the county jail.

The only ground in the motion for a new trial alleges that the verdict is contrary to the law and the evidence. As no statement of facts accompanies the record, it is impossible for us to review this question.

The judgment is affirmed.


author: PRENDERGAST, J.

text:
    IRVING v. STATE.
    (Court of Criminal Appeals of Texas.
    April 23, 1913.)
    1. Criminal Law (§ 364) — Evidence—Res Gestas.
    On a trial for assaulting with a pistol, with intent to murder, a man who was paying attentions to a woman to whom accused was attached, evidence that in the fight, immediately after the shooting, accused struck the woman with his fist and attempted to strike her with a chair was admissible as a part of the res gesta, and as throwing light on his state of mind and intention.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 805, 808-810, 813, 816-818; Dec. Dig. § 364.]
    2. Homicide (§ 166) — Evidence—Showing Motive.
    On a trial for assault with intent to murder, evidence that a woman, to whom the prosecuting witness was paying attentions, although she had a husband, was not living with him, but was living with her uncle, with whom the prosecuting witness boarded, and that accused was going to see her at the time, was admissible on the question of motive.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 320-331; Dec. Dig. § 166.]
    3. Criminal Law {§ 829) — Instructions— Cure by Other Instructions.
    It was not error to refuse a special charge which was fully embraced in the charge given.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.]
    4. Homicide (§§ 300, 309) — Instructions— Conformity to Evidence.
    On a trial for assault with intent to murder, special charges as to self-defense and manslaughter, if the shooting had resulted in the killing of the prosecuting witness, were properly refused, where the evidence did not raise those questions.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Di; [§ 300, 309.]
    Appeal from District Court, Nacogdoches County; James I. Perkins, Judge.
    Wash Irving was convicted of an assault with intent to murder, and he appeals.
    Affirmed.
    Ingraham & Hodges, of Nacogdoches, for appellant C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, J.

Appellant was convicted of an assault with intent to murder Cal Sanders on February 29, 1912. His penalty was fixed at two years in the penitentiary.

The evidence was amply sufficient to show: That for about a year before the assault is charged to have occurred on February 29, 1912, appellant had been attached to a negro woman. That Cal Sanders had recently also begun to pay attentions to the woman, which incensed appellant. Cal Sanders had been boarding for some time with Clark Whit-taker, said woman’s uncle, and recently before the assault the woman, who had been living elsewhere before, had then moved to and was also living with said Whittaker. On the night of February 28th appellant went to Whittaker’s house and stayed all night. Sanders slept in an adjoining room, Appellant slept in the same room in which the woman slept, on a bed on the floor. The woman slept on a bed in the southwest corner of the room; Whittaker and his wife on a bed in the southeast corner of the room. During the night the woman’s child was sick, and she was up with it two or three times, and it was crying during the night and created considerable disturbance. The next morning about daylight Cal Sanders came into the room where the woman was (she theD being up with the child about the fire) to make a fire. Appellant was still in bed. Sanders complained to the woman, and did some cursing or ugly talk in an ordinary tone about the “kid’s” keeping up so much fuss during the night as to prevent him from sleeping, and stated, in substance, that the next time it occurred he was going to’ break out of there, or break somebody out of there, or make somebody break out of there — some such language. He continued to make the fire, having procured wood from the gallery for that purpose. While he was making a fire, appellant got up, slipped on his pants, and went over to the head of Whittaker’s bed and procured a gun. The gun was not loaded, though there were shells in the magazine thereof. He worked the gun so -as to put one of the shells into the barrel ready for shooting. About this time the woman called out to Sanders, in effect, to look out; that “Wash [appellant] is about to shoot you.” Just then the. appellant did shoot at Sanders, missing his head only a few inches; the ball striking a clock and the wall just above Sanders’ head. Whittaker, hearing and seeing that appellant had a gun, had just gotten out of bed, and immediately after the gun fired — not before — he grabbed appellant around the arms, and after struggling with him for the possession of the gun succeeded in getting it from him. Immediately , afterwards or during the scuffle appellant struck the woman with his fist and attempted to strike her with a chair. Sanders and appellant then began fighting with their fists and clenching. They were soon separated. Appellant claimed that he did not shoot at Sanders, but ; that-the gun went off accidentally when Whittaker seized him and attempted to take the gun from him. A witness, Davis, swore that on Saturday evening before this shooting occurred the following Wednesday night that he had a talk with appellant, wherein he was “deviling” him about Sanders having taken said woman away from him, and swore that at that time appellant stated to him that Sanders had done him a wrong about the woman, and he intended to kill him. Some of the witnesses testified that immediately before the shooting appellant again reiterated and stated to Sanders, just before or at the time' he shot at him, that he intended to kill him.' The evidence did not raise self-defense- by appellant; nor did it raise the question of manslaughter, if a killing had occurred.

The court did not err in admitting the testimony to the effect that appellant, in the fight immediately after the shooting, struck the woman with his fist and attempted to strike her with a chair. That was a part of the res gestee of the transaction and threw some light on appellant’s state of mind at the time, of what his intention was with reference to killing Sanders. Neither did the court err in admitting the testimony showing that said woman, although she had a husband, was not living with him, but that she was then living at her uncle’s (Whit-taker’s), where said Sanders boarded, nor that testimony going to show that appellant was going to see her at the time; for all this tended to prove motive on the part of appellant for the assault by him upon Sanders.

The court gave a full and correct charge, submitting the case on the evidence that was adduced, and required the jury to believe, beyond a reasonable doubt, that appellant shot at and towards Sanders with a gun within carrying distance, with malice aforethought, and with the specific intention at the time of killing said Sanders, before they could find him guilty of an assault with intent to murder. And told them that, unless they so found, to acquit appellant. Besides, he charged the burden of proof on the state, and reasonable doubt in favor of appellant. On the subject of the accidental discharge of the gun, he charged: “If 'you believe the gun was fired at or towards Cal Sanders, but j'ou further believe, or have a reasonable doubt as to whether or not such is the fact, that the discharge of the gun was accidental, the result of interference of Clark Whittaker and without purpose or design of defendant, or that it was discharged without a specific intent on part of defendant then to kill Sanders, you will find the defendant not guilty.” The court did not, therefore, err in refusing to give appellant’s special charge requested on that subject; for, as stated by -the court in the refusal thereof, it was fully embraced in the charge of the court.

As stated above, the evidence did not raise the question of self-defense on the part of appellant in the shooting, and it did not raise the question of manslaughter, if the shooting had resulted in the killing of Sanders. Therefore the court did not err in refusing to give appellant’s special charge on those subjects, even if they were raised in' such a way as to require this court to pass upon those questions.

There being no reversible error pointed out in the trial of the case, the judgment will be affirmed.


text:
    COMEGYS v. STATE.
    (Court of Criminal Appeals of Texas.
    April 2, 1913.
    Rehearing Denied May 7, 1913.)
    1. Witnesses (§ 376) — Showing Prejudice1 —Rebuttal.
    Where, on a trial for assault, accused, for the purpose of showing animus and prejudice, questioned the prosecntipg witness relative to his calling accused a vile name, it was not error to permit the prosecuting witness to explain that he did so because he believed accused was implicated in the separation of himself and his wife.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1204-1206; Dec. Dig. § 376.]
    2. Criminal Daw (§ 1169) — Appeal—Harmless Error.
    - If the admission of such explanation was error, it was harmless, where the wife testified that accused had nothing to do with the separation, and the prosecuting witness subsequently exonerated accused of any improper relations with the wife.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. § 1169.]
    Appeal from District Court, Taylor County; Thos. L. Blanton, Judge.
    G. E, Comegys was convicted of assault, and he appeals.
    Affirmed.
    S. P. Hardwicke, of Abilene, for appellant C. E. Lane, Asst. Atty. Gen., for the State.

      For other-cases see same topi'c and 'section' NUMBER iü'Dec. Dig.'& Am. Dig. Key-No. Series & Rep^r Indexes

   HARPER, J.

This is the second appeal in this case; the opinion on the former appeal being reported in 62 Tex. Cr. R. 231, 137 S. W. 349. The facts are sufficiently stated on the former appeal to render it unnecessary to state them again.

There is but one bill of exceptions in the ■record, and that relates to the admissibility of certain testimony elicited from the prosecuting witness, John Reed, on redirect examination. This witness had testified on direct examination to an unprovoked assault on' him by appellant on the morning of the difficulty; that he was unarmed, and when first fired on retreated. In this Reed was supported by several witnesses; while appellant contended that Reed was armed and attempting to shoot him at the time he fired, and he also has support in the testimony. With this as the critical issue in the case,. on cross-examination of Reed appellant asked him if, some time prior to the morning of the difficulty, appellant had not spoken to him, and he (Reed) had replied, “Don’t you speak to me, you son of a bitch.” Appellant did this to show the intense animus and prejudice of Reed towards appellant, and on redirect examination' the court permitted the state to prove by Reed that his reason for so addressing appellant was that “he believed appellant was implicated in the separation of him [Reed] and his wife.” Appellant objected to this testimony, and the court instructed the jury not to consider the testimony for any purpose whatever against appellant, but they might consider it in passing on the credibility of the witness Reed.

Why did appellant ask Reed if he had called appellant a son of a bitch, if it was not to show the animus, prejudice, and bias of the witness? Certainly this was his purpose in so doing, and if he hoped to obtain that object by proving such fact, then wherein would it be erroneous to permit the witness to state why he had used the abusive epithet? In Branch’s Crim. Law (section 861) it is said: “Defendant is entitled to show animus and prejudice on the part o'f a state’s witness towards him, and its extent. In such examinations great latitude is allowed, when the object is to impeach the credit of such witness”—citing Mason v. State, 7 Tex. App. 623; Blunt v. State, 9 Tex. App. 235; Daffin v. State, 11 Tex. App. 79; Watts v. State, 18 Tex. App. 384; Tow v. State, 22 Tex. App. 184, 2 S. W. 582; Bennett v. State, 28 Tex. App. 540, 13 S. W. 1005; Lyon v. State, 42 Tex. Cr. R. 506, 61 S. W. 125. And in the recent cases of Earle v. State, 142 S. W. 1181, and Pope v. State, 143 S. W. 612, this rule is aptly restated and authorities extensively cited. And when testimony of this character is elicited for’ the purpose of affecting the credit of the witness, then whether or not the language- was uttered under circumstances which should affect his credit may be shown. Tippett v. State, 37 Tex. Cr. R. 191, 39 S. W. 120; Manley v. State, 153 S. W. 1138, recently decided, but not yet officially reported.

However, if we should be in error in holding this explanation of his using the language elicited by appellant,, under the record in this case it would not.be such error as would necessitate a-reversal of the case; for after the court permitted Reed to state, as the reason why he used the language, that he believed appellant was implicated in the separation of him and his wife, the court subsequently permitted Mrs. Reed to testify: “I .was the wife of John Reed,'the prosecuting witness. I certainly know why we separated, and I know Mr. Comegys [appellant] did not have anything to do with it, and did not Imow about it until it washover.”

He also permitted the appellant, on .re: cross-examination of John Reed, to prove that he (Reed) “never believed his wife was an impure woman; that he always believed she was a virtuous woman, and still believed so, and did not mean to create any other impression on the jury” — thus wholly exonerating appellant, as to any improper conduct towards Mrs. Reed, and under such circumstances the error, if error there be, in admitting the statement would be harmless.

In his general charge and the special charge given at the request of defendant, the court presented every issue in the case in as favorable a light as it was necessary or proper to do, and the judgment is affirmed.