text:
    BULLOCK v. STATE.
    (Court of Criminal Appeals of Texas.
    March 11, 1914.
    Rehearing Denied April 8, 1914.)
    1. Criminal Law (§ 636) — Triai>-Presence ojt Accused.
    The rule that defendant in a trial for felony must be present during any and all proceedings of the actual trial did not require that he should he present when the court continued the term in order to finish the trial, as it was authorized to do by Rev. St. 1911, art. 1726.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1465-1482, 2120; Dec. Dig. '§ 636.]
    2. Juey (§ 72) — Special Venire — Directory and Mandatory Provisions — Talesmen.
    The statute providing for special venires and the organization of a jury is directory only, so that, where a special venire has been exhausted the court may properly order the summons of sufficient talesmen out of which to complete the jury.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 333-347; Dec. Dig. § 72.]
    3. Criminal Law (§ 437) — Evidence—Location— Plat.
    Where a civil engineer drew a map or plat which was Shown to be substantially correct, it was properly admissible to show the situation of the place of the homicide, though not drawn to a scale, as against an objection that it was misleading.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1024; Dec. Dig. § 437.]
    4. Homicide (§ 169) — Evidence — Circumstances Preceding.
    Where, in a prosecution for homicide, it was shown by decedent’s two children, who saw the lulling, that their father on walking away with defendant just prior to the difficulty cut a twig and was whittling on it when he was killed, evidence that after the homicide the twig and bush from which it was cut was discovered was not objectionable, because it was several days after the killing before the children told of the fact, and until then no search for the twig, etc., was made.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 341-350; Dec. Dig. § 169.]
    5. Homicide (§ 266) — Eyewitnesses — Duty to Call.
    The state is not compelled to introduce all of its testimony, nor to call all the eyewitnesses to the killing in its case in chief.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 560; Dec. Dig. § 266.]
    6. Criminal Law (§ 666%) — Witnesses — Duty to Disclose — Testimony.
    Where the state did not call two of decedent’s children in support of its case in chief, whereupon the court granted permission to defendant’s counsel to consult with them, they having refused to inform defendant’s counsel what they would testify to, the court did not err in refusing to compel them to do so.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1576; Dec. Dig. § 606%.]
    7. Homicide (§ 188) — Self-Defense—Reputation op Deceased.
    Where defendant claimed that he shot deceased in self-defense, he was entitled to show that deceased was a violent and dangerous man' by proof of his general reputation, but if defendant’s state of mind at the time of the killing was also in issue, he might then show specific communicated acts of violence on deceased’s part.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 391-397; Dee. Dig. § 188.]
    8. Witnesses (§ 274) — Cross-examination-Specific Acts of Violence.
    Where, in a prosecution for homicide, defendant was entitled to show specific communicated acts of violence on defendant’s part, the state on cross-examination was entitled to go into particulars of such acts to show that deceased was justified, and to rebut defendant’s claim that deceased was a violent and dangerous person.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 965, 966; Dec. Dig. § 274.]
    9. Homicide (§ 163) —Evidence — Acts of Deceased.
    Where, in a prosecution for homicide, evidence of decedent’s acts is confined to those committed at the very time of the killing, which are res gestee thereof, and they show him to be a violent and dangerous man, the state cannot rebut such evidence by proof of his reputation in those respects.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 310-317; Dec. Dig. § 163.]
    Appeal from District Court, Maverick» ,.County; W. C. Douglas, Judge.
    R. L. Bullock was convicted of murder in the second degree, and he appeals.
    Affirmed.
    Jno. R. Storms, of Ft. Stockton, Jno. R. Sanford, of Eagle Pass,. B. -Baker, of Bar-stow, and Edwin F. Vanderbilt, of San Antonio, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, P. J.

Appellant was convicted of murder in the second degree, and his punishment assessed at 15 years in the penitentiary.

The record in this case is very voluminous, consisting of several hundred typewritten pages. No extended statement of the evidence is necessary. Only a brief statement of the issues need be stated. Mr. English, with his wife and child, lived in a tent and dugout in Pecos county at the time of the hilling. His nearest neighbor lived about a mile or two distant. Appellant lived some eight or ten miles from him. It was at the time a sparsely settled country. English got very sieh. The deceased and other neighbors had been sitting up with him at night. Several days before the killing, appellant’s sister, who lived with him, also went to the sick man’s to aid him and Mrs. English. Appellant was in Ooryell county when English was taken sick and knew nothing of it until he returned just a few days before the killing. The night before the killing, the deceased sat up with the sick man all night. Appellant’s sister sat up part of that night also. Appellant stayed there that night but did not sit up with the sick man he went to bed in a tent some 20 or 30 steps away from the tent where the sick man was and those who sat up with him stayed. The theory of the appellant was that during the early part of that night, after he had gone to bed, the deceased insulted his sister, seeking undue familiarity with her and soliciting sexual favors, which she resented. He claims that his sister told him of this early the next morning in the presence of Mr. and Mrs. English, and that Mrs. English at the time then told him in the same company that the deceased, shortly prior thereto, had said to her (Mrs. English) that appellant’s said sister, in effect, was a whore and permitted sexual favors to young men. The state’s theory was that none of this was true, and that it was all a frame-up by appellant to establish a defense in the killing. The theory of the state was that appellant was intimate with Mrs. English, and that the deceased, the night before the killing, had actually caught and seen him having sexual intercourse with Mrs. English. Each side had more or less evidence tending to support their theory and deny that of the other. Deceased left the sick man’s and went to his home early the next morning. Some time during the morning, before noon, appellant got up a horse, saddled him, and rode over the country, interviewing several persons and riding many miles hunting a six-shooter. To one of the parties whom he interviewed for this purpose, upon being told that the party had no pistol, he told such party, in effect, not to tell that he had applied to him for a pistol, or to say nothing about it to any one. He finally succeeded in getting a pistol, then rode to the house of the deceased. The deceased had no yard fence. He lived in a house and a tent, had a wife and several children. When appellant rode up to the house he saw one of deceased’s little girls, and asked where her father was. The child replied he was in the backyard tanning a wolf hide. He told the child to tell her father to come there; he wanted to see him. The child delivered the message, and deceased sent word back to him for him to come back where he was. Thereupon appellant rode around where he was, and after the usual greetings between them and some further conversation and invitation by deceased for appellant to get down off of his horse, as testified to by the wife, who was with deceased at the time, appellant replied that he did not have time, and he wanted to see him, and asked him(to walk off with him. The appellant remained on his horse, the deceased followed behind some 30 steps from where he got up from tanning the wolf hide, and according to the wife and the little girl, appellant asked the deceased, in substance, “What did you see last night?” And before deceased had time to reply, the appellant shot and killed him. The ball passed through the heart of the deceased and killed him instantly. Appellant then immediately ran off on his horse. Appellant disputed the testimony of the deceased’s wife and daughter, and, in effect, said that when the deceased had followed him off some 30 steps to have the talk with him, he asked deceased what he had said and done to his sister the night before. Deceased replied that he did not do anything. Appellant said, “Don’t go to denying it, you did; I want you to make apologies.” Deceased replied, “You damn son-of-a-bitch, hit that road; that is what you do,” with a motion of his knife or hand, and appellant said, “You take that back.” Deceased said, “I will take your damn guts out; that is what I will do,” and made a lunge at him with his knife, and he, appellant, thereupon shot and killed him. The evidence on the one hand was amply sufficient to show a premeditated, planned, deliberate, and cool murder without any provocation or justification. On the other hand, that the killing was justifiable in self-defense, or if not, it was only manslaughter.

The court, in a full, fair and unusually correct charge, properly submitted every issue to the jury for a finding.

The offense is alleged to have been committed on January 24,1912, in Pecos county, Tex. The grand jury of that county duly indicted him at the February term, 1912, and returned an indictment, which was filed in said court on February 12, 1912. At the beginning of that term the court announced he would call, and it seems on the first day of the term entered an order, duly calling a special term of said court for all purposes, to be held immediately upon the adjournment of that term. The trial of the case in Pecos county was begun at said February term, some time early in March. When the case was called for trial appellant made a motion to continue on account of the absence of one witness and the sickness of another. The court at that time overruled said motion, and proceeded with the trial. A jury was organized, the appellant pleaded not guilty and some of the evidence was heard, and the trial proceeded until Friday. At that time the court saw appellant’s sick witness, had a doctor to examine him, and then concluded that while he thought the witness was shamming to some extent in appellant’s favor, it was best not to force the witness on the stand until the following Monday, and adjourned the trial of the case from Saturday until the following Monday. Before the court for that term expired, on March 9, 1912, the court duly made and signed and had entered in the^minutes of the court, and read and approved an order to this effect: “And the court being in the midst of the trial of the case of the State of Texas v. R. L. Bullock, No. 344, pending on the criminal docket of this court, and I, W. O. Douglas, the judge presiding, deeming it expedient, do here now order that the present term of this court do continue until the conclusion of said pending trial.” The trial was resumed the following Monday morning. Appellant’s sick witness was put upon the stand, and testified on direct examination. Pending the cross-examination by the state, the court became satisfied that the witness was too ill to undergo a further cross-examination. The appellant’s other witness had not been secured up to that time. The court thereupon announced to appellant and his attorneys in open court that if, under the circumstances, they desired to withdraw their announcement and continue the case, on their application he would permit it to be done. The appellant and his attorneys both, in open court, made a motion to that effect, which the court granted and thereupon, at their instance and with their express consent, discharged the jury. At the next term of the court, the court properly, to which there is no complaint, changed the venue from Pecos to Maverick county. When the case was reached for trial in Maverick county, appellant pleaded former jeopardy, based on the facts above stated as to what occurred at the 'first attempted trial in Pecos county. As we take it, he bases his contention on the fact that the appellant was not personally present when the court called, or continued the term of court to finish the trial.

By article 1726, R. S., it is provided that whenever any district court shall be in the midst of a trial of a cause when the time for the expiration of the term as fixed by law shall arrive, the judge presiding shall have the power and may, if he deems it expedient, extend the term of said court until the conclusion of such pending trial. In such case the extension of such term shall be shown in the minutes of the court before they are signed.

By our law a defendant must be present, when he is tried for a felony, and during any and all proceedings of an actual trial. The continuing of the term of court which is about to expire, in order to have time to finish the trial, is no part of his trial, and it is not necessary, although it would not be improper, for him to then be present. It would be no more necessary for him to be present when such order is made or entered in the minutes than it would be for him to be present at the expiration of each day of the pending trial when adjournment occurs from one day to another, or for any other time pending the term when the court commences from day to day. I-Ie was not in former jeopardy by the proceedings shown above, and the court correctly sustained a demurrer to his plea.

The court did not err in overruling appellant’s third application for a continuance, in view of the whole record in this case and the court’s explanation of appellant’s bill to the overruling of his said motion.

The court .committed no reversible error in overruling appellant’s motions to quash the original special venire and the second special venire, as claimed by him. It is elementary in this state that our statute, providing for special venires and the organization of a jury, is directory and not mandatory. The record in this case shows that the court properly ordered a special venire, out of which some of the jurors for this trial were selected; that after this first special venire was exhausted he properly entered a d other order directing the summons of sufficient talesmen out of which to complete the jury, and that the jury was out of these two special venires duly completed; that appellant did not exhaust his challenges, and there is nothing to show, and no intimation, that any objectionable juror was forced upon him. Besides, the record shows that the court substantially, if not accurrately, complied with the law as to both special venires. Williams v. State, 29 Tex. App. 100, 14 S. W. 388; Jackson v. State, 30 Tex. App. 664, 18 S. W. 643; Murray v. State 21 Tex. App. 466, 1 S. W. 522; Hudson v. State, 28 Tex. App. 325, 13 S. W. 388; Roberts v. State, 30 Tex. App. 299, 17 S. W. 450; Gonzales v. State, 58 Tex. Cr. R. 258, 125 S. W. 395; Bizzell v. State (Cr. App.) 162 S. W. 861; Mays v. State, 50 Tex. Cr. R. 165, 96 S. W. 329; Woodward v. State, 50 Tex. Cr. R. 297, 97 S. W. 499; Blackwell v. State, 51 Tex. Cr. R. 24, 100 S. W. 774. It is needless to cite other cases.

One of the state’s witnesses, Mr. Purcell, who is a civil engineer and was at work building a railroad through that country at the time of the killing, drew a map or plat, not to the scale, but shown to be substantially correct, showing the various roads, the location of the various places and other data proper to understand the location and situation of the parties and places. This was introduced in evidence by the state, without objection by tlie appellant. All the witnesses, more or less, and some of them especially, testified about the various persons, places, and things with reference to the map, pointing them out at the time to the jury. Among other witnesses who testified and used the map for the purposes stated was Carroll Fulcher, a brother of the deceased. Appellant objected to this in a general way, because the said map was not correct, misleading, and calculated to lead said witness into making statements which sustained the state’s theory in some particulars. The bill pointed out no specific testimony and objected to it specially. The court qualified the bill by stating that Mr. Purcell, who made the plat, was a civil engineer experienced in drawing maps, and there was no serious conflict of testimony as to any point connected with the said plat. As qualified, the bill shows no error. Branch’s Crim. Law, § 361.

Appellant has several bills of exceptions to the testimony of various witnesses about the finding of a twig near where deceased was killed some several days after the killing. This testimony was by Mrs. Fulcher, the wife of the deceased, one pf the deceased’s brothers, and two of deceased’s children, his little girls. The bill also embraces some objections to the order in which this testimony was introduced. The substance of the evidence is this: The little girls testified that when appellant called deceased off from where he was tanning the wolf hide, in following appellant, he cut a twig off of a mesquite bush, carried that along with him in his hand, and was whittling on it when appellant killed him. Mrs. Fulcher and deceased’s brother did not know of this until several days after deceased was killed, when the little girls told them of it. As soon as they were told, they thereupon went to the scene of the killing, hunted for such a twig near where deceased fell when shot, and found it; they thereupon hunted for and found the mesquite bush from which the twig was cut, and fitted it thereto, and testified that it fit exactly, and both showed it had been recently cut. The little girls swore positively that their father did cut this twig off of the mesquite bush when he walked off with appellant, and was whittling on it at the time he was killed. The fact that Mrs. Fulcher and deceased’s brother did not know of this, and did not hunt for and find said twig until several days after the killing, would go to the weight and not to the admissibility of the evidence. No error is shown in the order in which the evidence wa's introduced, and none of appellant’s bills on this subject show any error.

The state first introduced on the subject of this twig, and the finding of it, etc., Mrs. Fulcher, deceased’s wife, and the said brother of deceased. After introducing much other evidence, the state rested without introducing the two little girls. Thereupon, and before proceeding with the trial, appellant sought to have the little girls first placed on the stand, as they were eyewitnesses also to the killing, and have them to testify.. The court denied this; they thereupon, sought permission of the court to consult, said witnesses in company with their mother, and wanted the court to instruct them, and require them to tell appellant and his counsel what their testimony was going to be. The court permitted them to seek and attempt to have the interview, but the witnesses would not tell appellant and his counsel what their testimony would be, and the court informed the appellant’s attorneys that he had no power to require them to do so. The appellant complains of the action of the court in this matter. It has been too often decided and too well established to need citation to the authorities that the state was not compelled to introduce all of its testimony and put all the eyewitnesses to the killing upon the stand in opening its testimony. It is also well established, and has been clearly held by this court, that the court’s action in not compelling the little girls to tell the appellant and his counsel what they would testify to, and the court’s action, in no way showed any error. Oreswell v. State, 14 Tex. App. 1.

As stated above, self-defense was very pertinently and clearly raised by appellant’s testimony alone. He attacked the character of deceased, and testified that the deceased had told him about whipping a Mexican in Grane county, where he then lived, and running another man by the name of Bosworth in his house with his knife, and told what the trouble was about. And that the deceased told him that he hit the Mexican with a bucket and a rock, and when Bosworth took it up, or interfered, that he threatened to “take Bosworth’s guts out,” and that he would have cut Bosworth if he could have gotten to him, and that the reason he couldn’t get to him was that Bosworth ran into his house. In addition to testifying that deceased told him this, he said Mert Nevill, a relative of appellant, and a Mr. Miller, also told him about it all before he killed deceased. He then further attacked the character of deceased and introduced Bosworth and Nevill, who also'-testified todsubstantially the same thing about the deceased having a fight with a Mexican and his threat to cut and “take out Bosworth’s guts” with his knife, and that they told appellant of this before this killing. This evidence clearly attacked the deceased as a violent and dangerous man, and especially in the particular of cutting, etc., with a knife, and appellant, in his testimony, fitted this in with his own as to what occurred and was said between him and deceased at the time he killed him, and said' that the deceased attempted and threatened to do to him just exactly what he claims the deceased Rad attempted on said Boswell. Thereupon the state was permitted, over appellant’s objection, to prove by Boswell on cross-examination and by some other witnesses that the general reputation of deceased was that of a quiet, peaceable and law-abiding man.

It is well settled that when pertinent, as in this case, an appellant can attach the deceased by showing that he was a violent and dangerous man. Ordinarily such proof must be made by showing that such was his general reputation. Heffington v. State, 41 Tex. Cr. R. 319, 54 S. W. 755; Connell v. State, 45 Tex. Cr. R. 153, 75 S. W. 512; Poole v. State, 45 Tex. Cr. R. 362, 76 S. W. 565; Darter v. State, 39 Tex. Cr. R. 44, 44 S. W. 850, and other eases. It is equally well settled that when self-defense is an issue, and it is proper or necessary to show the state of mind of the appellant at the time of the commission of an offense, he can then so attack the deceased by showing specific acts of violence which were then known to him, or had been communicated to him, which acts of violence show or tend to show that the deceased was a violent and dangerous man. Crow v. State, 48 Tex. Cr. R. 420, 88 S. W. 814; Childers v. State, 30 Tex. App. 160, 16 S. W. 903, 28 Am. St. Rep. 899; Spencer v. State, 59 Tex. Cr. R. 217, 128 S. W. 122; Poer v. State (Cr. App.) 67 S. W. 500, and other cases.

Whenever the circumstances are such as to authorize an appellant to introduce such specific acts, the state, in cross-examination, should then be permitted to go into the particulars of such specific acts for the purpose of showing that the deceased was justifiable, or rebut defendant’s theory that such acts show him to have been a violent and dangerous person. Such specific acts would tend to show, and in some instances might show, the deceased to be a violent and dangerous man, equally or more than his mere general character or reputation- on the point. Certainly, when an appellant is permitted to so attack a deceased, the state should then be permitted, if it could, to introduce proof to rebut such evidence. The lips of the murdered man are, of course, closed. He cannot testify to dispute or re-ffite such evidence by an accused. The state, therefore, unquestionably has thet right to meet this proof by showing that the general reputation or character of a deceased was that of a quiet, peaceable and law-abiding man, and not the reverse, as attempted to be shown by an appellant. Among other objects of our Code, as expressly enacted therein, it is said its object is “to bring to the investigation of each offense on the trial all the evidence tending to produce conviction or acquittal.” C. C. P. art. 1. In the recent case of Hysaw v. State (Cr. App.) 155 S. W. 942, on this question, we said: “We think that where the appellant puts the reputation of the deceased in issue on this subject by evidence either of his general reputation to that effect or by specific acts showing it, then it would be proper for the state to rebut this by showing that his reputation in this respect was not as attempted to be shown by such evidence, but his character was that of a peaceable, quiet, and law-abiding man.” Railroad v. Raney, 86 .Tex. 367, 25 S. W. 11; Railroad v. Weideman (Civ. App.) 62 S. W. 810; 7 Ency. of Ev. 240.

It is also well established that when the evidence is confined to the acts of the deceased at the very time of the killing and are the res gestae thereof, and such acts show him to be a violent and dangerous man, then the state cannot rebut by proof of his good reputation in those respects. This is well established by the cases of Gregory v. State, 50 Tex. Cr. R. 73, 94 S. W. 1041; Keith v. State, 50 Tex. Cr. R. 63, 94 S. W. 1044; Wakefield v. State, 50 Tex. Cr. R. 124, 94 S. W. 1046; Moore v. State, 46 Tex. Cr. R. 54, 79 S. W. 565, and other cases cited by appellant. The court, therefore, under the circumstances and facts of this case, committed no error in permitting the state to introduce the said evidence complained of by appellant.

Appellant, in his motion- for new trial has attacked various words, phrases, and paragraphs of the court’s charge. His motion on the subject embraces a considerable number of typewritten pages. The court’s charge is lengthy, but, as we have said above, it is a most admirable charge, properly presenting every issue, and correctly enunciating the law applicable thereto, that was raised by the evidence in this case. It is unnecessary to discuss either or all of appellant’s objections. After a careful consideration of them, it is our opinion that they point out no error.

The judgment will be affirmed.


source: Caselaw Access Project

author: PRENDERGAST, P. J.

license: Public Domain

text:
    CARTER v. STATE.
    (Court of Criminal Appeals of Texas.
    March 25, 1914.)
    1. Ckiminal Law (§ 1206)—Trial—Suspend-ed Sentence Law.
    The Indeterminate Sentence Act April 3, 1913 (Acts 33d Leg. c. 132), being void, did not repeal the Suspended Sentence Act Feb. 11, 1913 (Acts 33d Leg. c. 7), which act is expressly declared to be unaffected by the Second Indeterminate Sentence Act enacted August 18,1913 (Acts 33d Leg. [1st Called Sess.] c. 5) § 10, and hence it is improper to deny the submission of an accused’s plea, made in accordance with the Suspended Sentence Act.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 3271-3277, 3279, 3280; Dec. Dig. § 1206.]
    2. Criminal Law (§ 50S) — Accomplice — Competency—Accessory.
    Under Code Cr. Proe. 1911, art. 791, declaring' that persons charged as principals, accomplices, or accessories, whether in the same indictment or different indictments, cannot be introduced as witnesses for one another, accused, charged with assault with intent to murder, cannot introduce his brother as a witness in his behalf, where the brother was an active participant in the same affray out of which grew the prosecution, and was himself under indictment.
    [Ed. Note. — For other oases, see Criminal Law, Cent. Dig. §§ 1099-1123; Dee. Dig. § 508.]
    3. Criminal Law (§ 655) — Trial—Overruling of Objections.
    In a prosecution for assault with intent to murder, where accused’s brother was tendered as a witness, although he had participated in the affray and was also under indictment, the action of the court in reprimanding accused’s counsel and complimenting such counsel upon his knowledge of criminal law and long experience in practice thereof, when sustaining the objection to the brother’s competency, was not improper; the statute expressly declaring the brother to be incompetent.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1520-1523, 1527, 1535; Dec. Dig. § 655.] '
    4. Criminal Law (§ 426) — Evidence — Admissibility.
    Where accused claimed that he and his brother met the prosecutors by chance, and that the fight was not of his seeking, evidence that accused’s brother, when he left the place he had been during the evening, stated that he was going to his father’s to stay the balance of the night, it then being about 1 o’clock, is admissible, even though accused had met the prosecutors earlier in the evening, when they were carrying some young ladies home and had threatened them, using offensive language and had stated that he would get his brother and attack them later that night.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1011; Dec. Dig. § 426.]
    5. Homicide (§ 307) — Trial—Instructions.
    Where the evidence did not raise simple assault, but showed accused to be guilty of an assault with intent to murder, the refusal of a charge on simple assault was proper.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 638-641; Dee. Dig. § 307.]
    Appeal from District Court, Eastland County; Thomas L. Blanton, Judge.
    Charley Carter was convicted for an assault with intent to murder, and he appeals.
    Reversed and remanded.
    S. W. Bishop, of Gorman, and J. R. Stub-blefield, of Eastland, for appellant. C. E. Lane, Asst. Atty, Gen., for the State.

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

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

   PRENDERGAST, P. J.

Appellant was convicted for an assault with intent to murder John Lantron.

The record shows that before the trial began, under Act of Feb. 11, 1913, p. 8, appellant duly filed a sworn plea in accordance with the statute, seeking a suspension of his sentence in the event he was convicted and his punishment fixed at five years or less in the penitentiary. He asked a special charge submitting this issue to the jury, which the court refused to give, to which he excepted. He also excepted to the charge of the court because not submitted by the court in his main charge, and preserved the point by his motion for new trial. It seems the court was of the opinion that Indeterminate Sentence Act April 3, 1913, p. 262, passed at the same session of the Legislature as the previous act above noted, repealed the said first act, and hence refused to submit the question at all to the jury. In this the court was in error, which necessitates a reversal of this judgment. This court, in repeated decisions, has held that the said Indeterminate Sentence Act was void. Ex parte Marshall, 161 S. W. 112. Whether void or not, it did not repeal the said Suspended Sentence Act. The two acts, without question, if the latter had been valid, should have been construed together, and both could stand, and the latter did not repeal the former. However, the said act of April 3, 1913, has been entirely substituted by the Legislature by Act Aug. 18, 1913, p. 4, passed at a special session of the same Legislature. Section Í0 of the last act expressly states that it shall not, in any manner, be held to in any wise repeal, limit, or affect said Act Feb. 11, 1913, p. 8.

Dave Carter, the brother of appellant, was in the same fight, and, the evidence shows, an active participant therein with the appellant. The grand jury indicted him at the same time it indicted appellant. Unquestionably from the state’s viewpoint, both by the indictment and the evidence, Dave Carter, was a principal, or an accomplice in the same offense with which appellant was charged. Under such circumstances our statute expressly provides (article 791, C. C. P.): “Persons charged as principals, accomplices or accessories, whether in the same indictment or different indictments, cannot be introduced as witnesses for one another.” This is peremptory, and the trial judge has no discretion to violate it in the trial of a case. Appellant, by his attorney, offered before the jury on the trial of the case to introduce Dave Carter as a witness for appellant. The judge himself refused to permit this and reprimanded appellant’s attorney, also in the presence and hearing of the jury, for so offering said witness, and he also complimented the attorney for his knowledge in criminal law and his long experience in the practice thereof. Of course, it is to be regretted that such matters should be injected into the trial of a case. But appellant’s bill, as to this matter, does not show any error in the action of the court under the circumstances.

The state’s ease would show that prior to the alleged assault one of the brothers of appellant had had a fight with one of John Lantron’s brothers, in which John Lantron’s brother was cut by appellant’s brother and appellant’s brother beat up. The assault in this case was shown to have occurred about midnight or after, one Saturday night, a dark, drizzly, rainy night; that the three Lantron brothers were going home from their father’s with the three Free young ladies; the brothers’ sister accompanying them; that appellant caught up with them, and not only, in effect, insulted the Lantron brothers’ sister, without any provocation, but also used in her presence, and in the presence of the other young ladies, very offén-sive epithets and cursed and abused the Lan-tron boys, and threatened, not only at that specific time, but later during the same night, to do them serious bodily injury, if not kill them, and also at the time stated to them that he would go and get his brother Dave Carter and carry out his threat against them that night; that he did go and get his brother Dave, waylaid the three Lantron boys as they were returning from the Frees to their home, and seriously and violently, and without any provocation whatever, assaulted them, shot at and cut one or more of them, and knocked down John Lantron with a piece of board off of the bridge where they assaulted them. Appellant denied, in effect, most all of this, and claimed that the meeting of him and his brother Dave with the three Lantron boys at the place where they assaulted them, and where the fight occurred, was by mere accident. While this was his contention, the great preponderance of the evidence on this point was in favor of the state and against appellant. Under these circumstances, as tending to support appellant’s said testimony and theory, he offered to prove, in effect, by two witnesses that Dave Carter, when he left where he was that night, stated that he was going to his father’s to stay the balance of the night, it then being about 1 o’clock at night. On objection by the state, the court excluded this testimony, and qualified appellant’s bills on the subject by stating that about 11:30 o’clock of the night of the assault, while the Lantron boys were returning from a social gathering with their sister and other young ladies, appellant rode up and after some conversation threatened to shoot one of the Lantrons, and called him a damn son of a bitch; that Russell testified that when appellant was leaving he told the Lantrons that he was going to wake up his brother Dave and with him go back to the bridge, where the fight occurred; that when the Lantrons were passing this point at the bridge that night, returning home, Dave Carter assaulted one of them about midnight, and drew a pistol on him, and that appellant shot one of the Lan-trons, and the court therefore held that Dave Carter’s declarations, when he was leaving the house that night, were self-serving and inadmissible under the circumstances. The great preponderance of the evidence shown by this record was against appellant on this issue, yet, as we understand the law, he was entitled to introduce this evidence, for it was for the jury to pass upon the -issue, and not the court, however improbable or untrue the court may have thought his declarations were at the time. See Branch’s Crim. Law, § 337, and cases cited by him.

Appellant has several complaints to the court’s charge, and to the refusal of the court to give certain of his special requested charges. The court’s charge, in our opinion, fairly and fully presented the issues to the jury, and none 'of appellant’s complaints thereto are well founded. None of his special refused charges should have been given.

The evidence, as presented by this record, does not raise simple assault, and the court did not err in not submitting it.

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


author: HARPER, J. DAVIDSON, J.

text:
    QUALLS v. STATE.
    (Court of Criminal Appeals of Texas.
    March 11, 1914.)
    1. Ceiminal Law (§ 829) — Instructions— Requests — Matters Covered by General Charge.
    In a prosecution for abandonment after seduction and marriage, a requested instruction that, if the wife abandoned accused in Oklahoma, then his subsequent refusal to live with her in Texas was not an abandonment, was sufficiently covered by an instruction that accused should be acquitted if, after they were married, his wife abandoned him.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.]
    2. Criminal Law (§ 815) — Evidence — Instructions.
    Where evidence is admissible, a requested instruction excluding the jury from considering it for any purpose as against defendant is properly refused.
    [Ed. Note. — For other cases, see Criminal Law, . Cent. Dig. §§ 1922, 1986; Dec. Dig. § 815.]
    3. Husband and Wire (§ 313) — Abandonment — Evidence.
    Where, in a prosecution for abandonment after seduction and marriage, defendant sought to show that his wife abandoned him in another state, and that he refused to live with her when she came to Texas, because he had been informed by his father that she had returned to Texas to send him to the penitentiary, all of which the wife denied or explained, evidence that defendant did not intend to live with his wife longer than the two years required by law is pertinent.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 1110; Dec. Dig. § 313.]
    4. Criminal Law (§ 829) — Instructions— Requests.
    An instruction, in a prosecution for abandonment after seduction and marriage, that, if defendant seduced prosecutrix,- and thereafter offered to marry her, but she refused to marry him, then accused would not be guilty, sufficiently covers a requested instruction that, if defendant seduced prosecutrix, and he, in good faith, after she was found to be pregnant, offered to marry her, and she refused, he should be acquitted.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.]
    5. Husband and Wife (§ 313) — Abandonment— Evidence.
    In a prosecution for abandonment after seduction and marriage, evidence that the prosecu-trix had been engaged to other men prior to the time she became engaged to defendant was not germane, where there was no proof offered as to criminal intimacy.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 1110; Dec. Dig. § 313.]
    6. Criminal Law (§ 656) — Remark of Court —Weight of Evidence.
    Where it is sought to compel a prosecutrix, in a prosecution for abandonment after seduction and marriage, to gives the names of her former fiancés, a remark of the court in admitting the evidence that he did not think it was serious, and the jury could weigh it for what it was worth, was not a comment on the evidence.
    [Ed. Note. — For other cases, Law, Cent. Dig. §§ 1524r-1533; 656.] see Criminal Dec. Dig. §
    7. Criminal Law (§ 361) — Explanation of Testimony.
    In a prosecution for abandonment after seduction and marriage, in which it was shown on the issue of abandonment by the wife in another state that prosecutrix made a remark that she was going to Texas to get revenge and place her husband in the penitentiary, it was permissible to explain the remarks by evidence that they were retaliatory statements made after she had been told she would be paid money to release her husband, and that she had possession of a letter written by her husband expressing his joy at his freedom.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 802, 803; Dec. Dig. § 361.]
    Davidson, J., dissenting.
    Appeal from District Court, Coryell County ; J. H. Arnold, Judge.
    Tom Qualls was convicted of abandonment after seduction and marriage, and he appeals.
    Affirmed.
    See, also, 158 S. W. 539.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

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

   HARPER, J.

I cannot concur in the reversal of this case, but think the judgment should be affirmed.

The first error stated in the above opinion reversing the case is stated as follows: “It will be noted the court did not submit the issue that if defendant’s wife abandoned him in Oklahoma that his subsequent refusal to live with her in Coryell county would entitle him to an acquittal.” The court did instruct the jury: “Unless you find from the evidence beyond a reasonable doubt that the defendant committed the offense of seduction upon Miss Olive Pierce, as alleged in the indictment, you will acquit him. If you find from the evidence that the defendant, Tom Qualls, had intercourse with Miss Olive Pierce, without a promise of marriage, if he did do so, or if the defendant seduced Olive Pierce, and thereafter offered to marry her, but that she refused to marry him, or if, after they were married, his wife abandoned him, or was guilty of excesses, cruel treatment, or outrages toward him of such a nature as to render their living together insupportable, or if you have a reasonable doubt thereof, you will acquit the defendant.” (Italics ours.) It will be noticed that in this charge the court instructs the jury that, if Mrs. Qualls abandoned her husband, he should be acquitted, and was a sufficient presentation of that issue, and it was not necessary to give the special requested charge, for in the main charge of the court he had affirmatively submitted every defensive issue made by the testimony offered in behalf of appellant.

Neither do we think that the second special charge quoted in the opinion should have been given. It was either error to admit the testimony, or the charge was inapplicable, for it. instructs the jury it could not be considere^ for any purpose as against the defendant. If it could not be considered by the jury “even as a circumstance against him” on any phase of the case, it was improperly before them. In the opinion on the former appeal, we held this testimony admissible (Qualls v. State, 158 S. W. 539), and our reason for so doing was that Mrs. Qualls was testifying to a positive abandonment by appellant, and a refusal to live with her after a solicitation on her part to renew their relations as husband and wife. Appellant, by his testimony, was attempting to show that Mrs. Qualls abandoned him, and the reason of his refusal to renew the relations as husband and wife, when solicited by his wife to do so, was that he had been informed by his father that she had returned to Texas to send him to the penitentiary. He denied that, when he left her in Oklahoma and came back to Texas, he intended' to abandon his wife; he said he intended to return to her all the time until he got this information from his father, and he would have continued to live with her but for the fact his father had told him his wife had said that she had come back to Texas to send him to the penitentiary; introduced his father to prove that he had so -told his son, and his uncle B. L. Qualls to prove that his wife had said that she was returning to Texas for this purpose. His wife denied making such remark, saying the only remark she did make to B. L. Qualls was, when appellant’s uncle R. L. Qualls told her that appellant did not intend to live with her any more, and he would give her $250 to release appellant, she became angry and said that she was going home to get “revenge.” And then testified that, when her anger cooled, she had no desire to prosecute appellant, if he would continue to live with her as husband and wife, and that she wrote him a letter in which she requested a renewal of the relations with appellant as husband and wife. B. L. Qualls testified he offered her the $250 to release appellant, but says he did not tell her that appellant had then quit her, saying he only told her that Tom (appellant) would not live with her longer than the two years required by law anyway. Under such circumstances we think appellant’s often expressed intention, before and after marrying Ms wife, that he did not intend to live with her longer than the two years required by law (of which fact she was not made aware at the time she married him), was admissible in evidence as bearing on the fact, first, whether he or Mrs. Qualls, in fact, did the act of abandoning, and, secondly, on the issue of whether or not the statement of his father to him that she had come to Texas to send him to the penitentiary, was Ms sole reason for refusing to live with her after she came back to Texas, as claimed by him. And if the testimony was admissible on these issues, the court correctly refused the special charge that it could not be considered for any purpose, and the charge of the court in submitting the -issues is not subject to the criticism that “it authorized the jury to convict appellant, if they believed he intended to abandon his,wife after two years.” Such an issue was not submitted to the jury, nor could the jury have been misled into any such misconception of the charge as given.

The contention in the opinion that the court should have given the special charge presenting the issue that, if appellant offered to marry her, she refused such offer, we cannot agree to for two reasons: First, the court, as shown above in the charge copied, did so instruct the jury. Secondly, while the court did submit that issue, we do not think such an issue is really raised by the testimony. While it is true appellant testified that, before Miss Pierce (now Mrs. Qualls) told him she was pregnant, he discovered the fact that she had missed her menstrual period by looking at her, and suggested as much to her, and also suggested they get married at once, but says .she denied she was pregnant, and said she was not ready to get married right then. However-, appellant also testified that shortly thereafter Miss Pierce came to him and told him she was pregnant, and insisted on him marrying her, and he refused to do so. Mrs. Qualls denies all, except that, when she first discovered she was pregnant, she suggested to appellant that they get married at once, and he refused, and, when she kept insisting, he stopped coming to see her, when the prosecution for seduction was begun. Take the testimony of appellant alone, and in its strongest light it was not a refusal to marry, but only a suggestion of delay, which in but a short time he admits she came to him and said she was now ready to marry him. This does not present a refusal to marry in the sense that would bar a prosecution for seduction. And, furthermore, he subsequently did marry her to secure a dismissal of the prosecution for seduction, and, having done so to obtain the dismissal of that case, he was then under legal obligation to carry out the obligations he assumed by such a course.

As to whether Mrs. Qualls had been engaged to other men prior to the time she became engaged to appellant was not germane to any issue in the case, as he did not > propose to follow it up with any proof that she had had carnal intercourse with such men, and the objections of the district attorney should have been sustained. However, as the court did admit the testimony at appellants suggestion, the fact that, in doing so, he remarked, “X don’t regard the matter serious, I think it admissible, and the jury can give it such weight as they think it entitled to,” presents no error. It is shown that by the bill state’s counsel contended that it was inadmissible to compel Mrs. Qualls to give the names of the men to whom she had formerly been engaged, and said it might cause divorces, as some of the men had married. The court remarked he did not regard it as a serious matter, implying that it would not be likely to cause divorces, and such a remark would not be a comment on the weight of the testimony, for he followed it up by saying that the jury could give the fact that she had been engaged to other men such weight as they thought proper. Neither do we think that the bill indicates the district attorney was nervous about the matter — he had a right to make an objection to testimony he "thought inadmissible, and we think his objection should have been sustained, for it would be immaterial how many men she had been engaged to prior to the time she became engaged to appellant.

We also think it was permissible under the circumstances for Mrs. Qualls to explain how she came to make the remark she was going to Texas to “get revenge.” Appellant elicited this fact on cross-examination of the witness; introduced other testimony to prove that she did make the remark for the purpose of showing that his wife had abandoned him, and he had not abandoned her. The explanation she gave was that she had just been informed that she would be paid $250 to release appellant from his marital vows, and further informed, at least, that he would live with her only two years at most, if she did not take the money and release him; that this angered her, and she made this remark under such exciting influences. Xt also further appears she had just gotten hold of a letter written by appellant to his brother Oleve wherein appellant had said, one of them being in Texas, and the other in Oklahoma, “he was just as close to his wife as he ever expected to be, and he felt like a bird out of a cage, and felt free, and was going to see some of the world.” A wife, under such circumstances, would be calculated to get angry and make remarks, and, when appellant elicited such remarks as defensive matter, the occasion for them being made is certainly admissible. This, too, especially when it appears that she subsequently made overtures to appellant, and he declined them.

We have discussed only the matters discussed in the above opinion; however, we do not think any of the other matters present error, and are of the opinion the judgment should be affirmed.

PRENDERGAST, P. X, concurs. DAVIDSON, X, dissents.

DAVIDSON, J.

(dissenting).

This is the second appeal; the disposition on first appeal can be found reported in 158 S. W. 539.

Judge Harper, rendering the opinion of the court on the former appeal, suggested that a new indictment be found setting up all the statutory grounds under which appellant might be convicted to meet the different phases of the testimony as shown by the record. It may be stated generally there is no very substantial difference between the facts now and on the former appeal. This indictment contains two counts; the first charging abandonment by appellant of his wife in Coryell county, and the second charging that he refused to live with her in that county. The other portions of the statute are not set forth in the indictment.

The contention may be thus stated: The prosecution contends the abandonment was by appellant. Appellant contends the abandonment was on the part of his wife. It is also suggested the abandonment occurred in Oklahoma, and was by the wife, and not the defendant, and that she subsequently moved back to Texas to Coryell county. If> the prosecutrix abandoned appellant in Oklahoma, he should not be prosecuted. The statute does not authorize his conviction where the wife abandons. It is only in case he abandons her under circumstances denounced in the statute. Again, if he abandoned her, and did this in Oklahoma, that state would have jurisdiction, and not Coryell county. If she abandoned appellant in Oklahoma, then he would not be violating the statute in refusing to live with her after her return to Texas. These matters were all presented under the evidence applicable to the counts in the indictment. Several exceptions were made to the charge under our new practice act. These were subsequently presented in the motion for a new trial, and are properly reviewable.

The court substantially charged the jury that, if Mrs. Qualls abandoned her husband, defendant, or was guilty of excesses, cruel treatment, or outrages toward him of such a nature as to render their living together insupportable, or if they had a reasonable doubt thereof, they should acquit. He further charged, on the other • hand, that, if appellant in Coryell county abandoned his wife, as alleged in the first count of the indictment, or that he then and there refused to live with her, as alleged in the second count of the indictment, and the said Mrs. Qualls had not' theretofore abandoned him, nor been guilty of such excesses, and outrages, and cruel treatment toward Tom Qualls as to render their living together insupportable, but that such abandonment by defendant, or such refusal to live with her, if he did so, was without such fault on her part as is' explained to the jury in the foregoing portions of the charge, then they will convict defendant of abandonment after seduction and marriage, as alleged in the indictment, etc.

These are the charges upon which the case went to the jury on the issues charged in the indictment. At the request of appellant the court charged the jury that, if they should believe that appellant abandoned his wife in Oklahoma, or that at the time of such abandonment, if any, defendant was not at the time in Coryell county, or if they had a rea-, sonable doubt of this, they should acquit. This was given. It will be noted the court did not submit the issue that, if defendant’s wife abandoned him in Oklahoma, his subsequent refusal to live with her in Coryell county would entitle him to an acquittal. This was an issue in the case. If she abandoned him in Oklahoma, then his subsequent refusal to live with her in Coryell county could not be imputed to him under the statute as violative of its provisions. If she abandoned him in Coryell county, he would not be responsible either for abandonment or refusing to live with her. These issues were all presented by the evidence, and should have been fully charged. The following charge was asked, in this connection; but the court refused to give it; “At the request of the defendant, you are charged, etc., as a part of the law in this case, and as a part of the main charge, that should you believe from the evidence that the defendant* was informed that Olive Qualls had left his home in Davidson, Okl., and had separated from him, and returned to Coryell county, Tex., for the purpose of undertaking to have the defendant sent to the penitentiary, and that he believed the same to be true, and that he had not abandoned the said Olive Qualls at the time she so left his home, or if you have a reasonable doubt on this point, you will acquit him.” This was refused. This was pertinent to the case, and should have been given. Without taking these questions up seriatim, and entering into anything like a discussion at length, the matters may be thus restated as raised by the indictment and the testimony: If appellant abandoned his wife in Oklahoma, he could not be convicted under the first count of the indictment If he abandoned her in Oklahoma, and he subsequently refused to live with her in Coryell county, then he might be prosecuted under the second count of the indictment. See' Qualls v. State, 158 S. W. 539. If she abandoned him in Oklahoma, then appellant could not be convicted in Coryell county, under either count of the indictment. It is only where he abandons his wife or refuses to live with her that he is responsible criminally — not ¡where she abandons him. Under this theory he would not be responsible in Coryell county under either count of the indictment. These issues should be clearly and pointedly and affirmatively submitted to the jury for their consideration. These issues are sharply drawn by the testimony. Because these matters were not presented as required by law, the judgment will be reversed.

• There is another charge asked by appellant, which was refused, which we are of opinion ought to have been given. That charge is as follows: “At the request of counsel for the defendant you are charged, in connection with the main charge, and as a part of the law in the case, that, under the statute of this state defining the offense of ‘abandonment after seduction and marriage,’ the defendant is only required to live with the alleged seduced female for two years from the date of said marriage, and that it is immaterial whether he intended to separate from her or not after that time, and you will not consider, as any evidence against the defendant, any testimony in this case relative to what his intention was as to whether he would continue to live with Olive Qualls after said two years had expired, and such intention is not even a circumstance against him, and should not be considered by you.” This was refused. Perhaps as requested it does not fully present the law applicable to the case made by the facts. Theré was a great deal of testimony in the case to the effect that appellant married her for the purpose only of living with her the two years required by the statute. On the former appeal this testimony was held admissible as bearing upon the question of abandonment. It was permitted to go to the jury as shedding light upon the question as to who was responsible, the defendant or his wife, in regard to the abandonment, and which one, as a matter of fact, abandoned the other. The fact that he intended to live with her only two years would not subject him to a prosecution, and for this he could not be convicted. If-he lived the two years with her, the statute was complied with. The Legislature saw proper to put the statute in this form, and that would settle the question. The jury should have been in some way instructed that they could not convict him because he had intended not to live with her but two years. This could not form the basis of a verdict. This character of testimony was admissible, as held on the former appeal, for the purpose stated in that opinion. The court should be some way instruct the jury they could not convict him for his intention and purpose not to live with her after the expiration of the two years; that they should be limited in their finding to the two years set out in the statute.

Appellant asked another charge along this line, that, should the jury find from the evidence that defendant seduced Olive Pierce, and also that he, in good faith, after she was found to be pregnant from such seduction', offered and tendered to marry her, and she refused such offer on the part of the de-fondant to marry her, or if the jury had a reasonable doubt on this point, they should acquit him. The court in that connection instructed the jury rather briefly as follows: “Or if defendant seduced Olive Pierce, and thereafter offered to marry her, but that she refused to marry him, then appellant would not be guilty.” While this submits the question, it is along with a lot of other matters, and the charge asked by appellant specifically submits this matter. This charge should have been given more specifically than was given by the court. This pointed out specifically this matter, and it is clearly raised by the testimony. The evidence at this juncture shows, when appellant was informed of the fact and knew that Miss Pierce was pregnant, he offered then to marry her; she declined at the time, and seems to have placed it on the ground that she was not ready to get married, but in any event she declined then to marry him, but subsequently after the indictment was preferred she did consent to marry him. Under our view of this matter, if defendant once offered in good faith to marry her, and she declined it, that fulfilled the requirements of the statute, and the subsequent acceptance of the offer would make no difference so 'far as the abandonment is concerned.

Quite a number of bills of exception were reserved to testimony that on the former appeal was held admissible, and about which appellant asked a special charge limiting it so that the jury would not convict him on the theory that he only intended to live with her two years. The testimony was admitted showing all these matters, both directly and indirectly, as bearing upon the question as to who brought about the abandonment. The court signs one of the bills of exception, and qualifies the other bills by referring to this qualification, which is as follows: “In explanation of the above bill I desire to siate that the testimony set out in this bill, and other testimony of a similar nature, was admitted by the court on the question of the defendant’s motive and intent. It was the state’s contention that the defendant only married the prosecuting witness to escape prosecution for seduction. The defendant himself testified that he never intended to live with her any longer than the two years required by law. It was further the state’s contention that the defendant was continually nagging prosecutrix, and resorting to subterfuges and strategy to force her to leave him, and even offering to pay her to do so. It occurred tome that the evidence in question would throw light on the defendant’s motive and intent in his dealings with his wife after marriage. And that his conduct should be viewed by the jury in the light of his true attitude toward his wife, and his expressed determination to desert her after two years. His willingness to live with her at all, and his doing so being compelled by law for two years, furnishes a powerful motive for him to leave her before the expiration of the two years, and for an insufficient or no cause. With this explanation the hill is made a part of the record in the case.” As before held, this character of testimony was admissible as bearing on the question as to whether or not the wife deserted him, or he deserted or abandoned her. This testimony could not be used as a basis for a conviction. It could only be used to throw light upon the other question, and under the ruling of the court upon the former appeal it was admissible.

There is another bill, in substance, as follows: “While the state was introducing testimony before the jury, and while the witness Olive Pierce Qualls was on the stand testifying as a witness in behalf of the state, and while she was on cross-examination by defendant’s- counsel, the following occurred: ‘Q. Tell the jury how many boys you were engaged to before you were engaged to the defendant? A. I don’t know. Q. How is that? A. I said I didn’t remember. Q. Do you say there were several? A. No, sir; there wasn’t very many. Q. Was it as many as five? A. No, sir. Q. How— A. No, sir. Q. As many as two? A. Yes, sir. Q. What two? A. I don’t think I ought to have to tell. Q. How -is that? A. I don’t want to tell; some of them would deny it now, I guess.’ Counsel for the state had been making objections all along to this testimony, and his objections were overruled,- and at this time he renewed his objections, and the court remarked: T don’t regard the matter serious. I think it would be admissible, and the jury can give it such weight as they think it is entitled to.’ ” Exceptions were reserved to the remarks of the court in the presence of the jury in stating that he did not regard the matter as serious, and its being upon the weight of the testimony, and this bill was tendered in this condition, and the court qualifies it as follows: “With reference to the above and foregoing bill of exception, the bill states what transpired correctly down to the point where it is shown that the state objected to the witness being allowed to tell the number of persons to whom she had been engaged; at this point the district attorney renewed his objections previously made to the testimony, and, as ground for said objections, stated to the court that to permit said testimony might cause separation between men and their wives, or result in divorce proceedings, and disturb the tranquility of homes, etc., and the court said, in response to the state’s argument, ‘Bufe [meaning Bufe McClellan, district attorney], X do not regard the matter as serious as you do; I think the testimony would be admissible, and I will admit it, and the jury can give it such weight as they think it is entitled to.’ The remark of the court that I did not consider the matter as serious, etc., had reference, as the connection shows, to the argument.that, if the testimony was admitted, separation, divorces, and other serious trouble might follow, as the state was contending, and was intended by me as a dissent from the state’s view as to the consequences 'of admitting the evidence. However, I followed the remark in question with the statement that I would admit the testimony, and that the jury would give it such weight as they thought it entitled to. I make this explanation to show the connection in which the remark was used. Without the explanation here noted, the bill would not be a fair one. If counsel for defendant excepted to said remark of the court, I did not hear it; but, in deference to the stenographer’s notes showing such exception, though the grounds are not stated, the bill is allowed with the alcove explanation.” The stenographer certifies as follows: “I, B. W. McKenzie, official court stenographer of the fifty-second judicial district, hereby certify that the above and foregoing is a verbatim report as -shown by my notes taken in the trial to which it relates, and upon the subject to which it relates.” The court qualifies it by stating that, inasmuch as the stenographer’s notes show the things as contended by appellant, he qualifies it as stated above. The court should have ruled, without intimating what he thought about the testimony, whether it was serious or not. He did not* explain to the jury what he meant by not being serious, and, had he simply ruled on the objections, the explanation would not have been necessary. The statute prohibits the court from indulging any remarks indicating what he may think of the weakness or strength of testimony. If it is admissible, it could go to-the jury; if not, it should be rejected, without the court expressing his views on its-weight or value. The district attorney’s objections, to say the least, are quite novel. Just why he should have suggested as an objection that the testimony sought might bring about divorces, and disturb the tranquility of the community, etc., he does not explain. This would not be a legal objection. If the testimony is admissible, a defendant’s right should not be jeopardized because the district. attorney thought that some family might be disturbed because of the previous relations of 'the prosecutrix with the husband of those different families. It would rather indicate the district attorney was nervous about this matter, and that it, might develop facts that might show the prosecutrix in a light - that might be detrimental to the state. But the district attorney’s objections were not legal, and, to say the least of it, peculiarly novel, and not,sustainable from any standpoint. Defendant, was entitled to the testimony; his liberty was at stake, and, if it disturbed the peace of other families, appellant ought not to suffer for that reason. If the testimony is legitimate, he is entitled to it, and his liberty should not Be jeopardized because it might disturb, in the district attorney’s mind, the tranquility of families, or possibly bring about divorces. It may have developed facts that would bring about divorces — the bill does not show, but it does show the suspicion of the district attorney that something of that sort might happen, or in his belief it might happen. It is part of the district attorney’s legal business, as we understand the laws of Texas, to see that a man is legally convicted. It is the defendant on trial, not the divorce or possible divorce proceedings in some other case, and it is as much the duty of the district attorney to see a fair trial is had as it is to secure a conviction.

Another bill recites that during the introduction of the evidence, and while the prosecuting witness was on the stand testifying in behalf of the state, and after she had testified that at one time in Oklahoma, after she returned there from her visit to Texas, and during the absence of the defendant, and while ho was away from Oklahoma, she had stated that she was going to return to Texas and “get revenge” against the defendant, she then sought to explain her statement with reference to returning to Texas and getting revenge against the defendant, and appellant at the time objected to any explanation of said testimony by the witness, and the court overruled defendant’s objection, and permitted her to explain her testimony as follows: “I thought I would come down here, and I had an idea I would get to live with him [meaning defendant, Tom Qualls] again; that is the idea I had.” The court permitted this, he says, on the theory that this was an explanation, and she had a right to make the explanation, or the state rather had a right to prove this explanation on her part because the defendant had brought out from her the fact that she was going to Texas “to get revenge.” The writer is of 'the opinion that this explanation was not admissible. It was secret in her mind and not divulged. He was not advised or informed of her secret intentions. If this was communicated to defendant, it, of course, would have been admissible; but a secret or undisclosed motive of the witness could not be used against appellant. She had stated she was coming back to Texas to get revenge, and the evidence shows defendant was aware of this. Had her explanation when she changed her mind been given to defendant, it would be introducible, because he had previously introduced the other part of it; but this was a secret undisclosed motive on her part. She seems not to have disclosed it to anybody, but simply testified upon the trial of the case. She was quite angry at the time she made the threats “to get revenge”; but she says she afterwards changed her mind about it, but she did not communicate this change of mind to defendant or any one else. So, as it is presented, we are of opinion the explanation should not have gone to the jury. See Branch, Crim. Law, § 478, for cases.

The other bills of exception relate to charges which have been sufficiently mentioned in a general way without further discussion.

The judgment ought to be reversed, and the cause remanded.