text:
    SEARLS v. BROWN.
    (No. 1938.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 25, 1918.
    Rehearing Denied May 9, 1918.)
    1. Fraud @=366 — Conflict in Findings.
    In action for fraud in exchange of dry goods for land, findings that parties finally effected exchange under terms in written instrument, and that, though plaintiff finally took dry goods at price marked, he did not know goods had been re-marked, held not in conflict.
    2. Fraud <§=o62 — Misrepresentation ox Cost Price — Recovery.
    Where plaintiff contracted to exchange land at $26 an acre for defendant’s dry goods at their cost and cost of carriage, but defendant remarked some goods to make cost price $500 in excess of what it actually was, plaintiff could recover no more than $500 from defendant.
    Appeal from District Court, Henderson County; John S. Prince, Judge.
    Action by H. L. Brown against John W. Searls. From a judgment for plaintiff, defendant appeals.
    Modified, and, as modified, affirmed.
    This action is by appellee against the appellant for damages predicated upon alleged fraud and deceit practiced in the exchange of property. The defendant denied any fraud or deceit. The court entered judgment in favor of th'e lflaintiff upon the special findings of the jury.
    The appellee owned 320 acres of land, which he valued at $26 an; acre. The appellant owned a stock of general dry goods, valued at $11,200 or more. These parties signed a written instrument on January 25, 1915, agreeing that on or before February 20, 1915, if by that time neither party declined to consummate the deal, they would exchange the above land for so much of the dry goods, to be taken at cost and carriage of same, as was necessary to pay for th’e land at $26 an acre, less the amount of the outstanding vendor’s lien notes, which the appellant was to assume and pay off. At that time a cost price was marked on the goods, and the appellant saw and knew of it. The parties finally agreed, on February 20, 1915, to make the exchange; and on February 22, 1915, the appellee executed a deed to the appellant to the land, and the appellant executed a bill of lading to the appellee to about $7,000 worth of the dry goods. The jury made the finding that the parties finally effectuated the exchange under the terms as provided in the written instrument! of January 25, 1915, which means that the price of the land was to be fixed at $26 an acre and the price of the dry goods at cost and carriage of same. There is evidence in the record that, after signing th’e instrument of January 25, 1915, the appellant caused a part of the dry goods to be re-marlced as to the price paid for them; and the jury found that the appellee at the time of the final exchange took the dry goods at the price they were then marked, not knowing and not having been informed of the change of the marking of a price higher than the cost and carriage of the same. The jury-further found that the goods were re-marked to the amount of $500 above the former marking. The appellant’s testimony is to the effect that, in adding the increase of price of the goods, he did not do so with the object of making dishonest estimates of price, and thereby inducing the appellee to make the exchange on the higher price; and that appel-lee was informed of the re-marking; but the testimony of the appellee is to the effect that he did not know of the subsequent re-marking, and that it was concealed from him in order to out-trade him, and to have him take the goods at the higher price, not knowing that the higher price was substituted. The court’s judgment involves the finding of fact of alleged fraud and deceit.
    There is evidence that the appellant removed some of the dry goods to the Spencer-Collins storeroom prior to the final trade of February 20, 1915. But there is no finding by the jury, and the evidence does not warrant a finding, that fraud or deceit was practiced by the appellant in the removal of th'e goods and in the quantity of the goods delivered to appellee.
    Richardson & Wa'tkins, of Athens, for appellant. Miller & Miller, of Athens, and R. S. Neblett and Ormond Simkins, both of Corsi-cana, for appellee.
   LEVY, J.

(after stating the facts as above).

Appellant insists that the court erred in entering judgment for the plaintiff on the findings of the jury and under the evidence in the case. Construing th'e findings of the jury in the light of the evidence, it is believed there is no conflict in the findings. The jury found, it is thought, that (1) the parties finally effected the exchange under the same terms as provided in the written instrument of January 25, 1915, which' were that the price of the land should be fixed at $26 per acre and the dry goods were to be valued at the cost and carriage of same; and (2) though the appellee on the final agreement of February 20th took the dry goods at the price then marked on them, he at the time did not know and had not been informed that the goods had been re-marked since January 25, 1915. And the evidence shows that after signing the written instrument of January 25, 1915, and before the taking of the inventory in February, the appellant caused a portion of the dry goods to be re-marked as to the cost price of th'e same. The issue was as to whether, as alleged and claimed by the appellee, this re-marking was a dishonest estimate of the price of the goods, and was done to deceive and defraud the appellee in the exchange; or, as claimed by the appellant, there was a re-marking of a small portion of the goods, and that was done to correct and represent the real cost and carriage price of the same, and of which appellee was informed, and finally agreed to receive such goods at that price. The effect of the findings and the evidence was to authorize a judgment for the appellee. But, as claimed by th'e appellant, the amount of the judgment is not warranted by the evidence and the jury findings. The jury found that the goods were re-marked $500 above the first marking. This was the only amount of which appellee may claim he was defrauded through the alleged re-marking of the goods, and for which he should have judgment in his favor.

There was no finding of the jury, nor any evidence to support the finding, that fraud or deceit was practiced by the appellant in the removal of the goods or in the quantity delivered to appellee. Appellee, at the time he finally agreed to the exchange in February, was present and inspected the goods, and saw, or could have seen, the quality and salability thereof. And appellee cannot recover for removal of the goods under the written instrument of January 25 th; for, as clearly proven, it was refused to be carried out by the appellant, as he was authorized by its terms to do, before February 20, 1915. The finding of the jury is, not that the instrument of January 25th was carried out and completed by the parties, but merely that the parties finally traded on th'e same terms respecting prices as those incorporated in the instrument of January 25, 1915.

The judgment is modified, so as to adjudge a recovery in favor of the appellee for $500, and, as so modified, is affirmed. The cost of appeal is taxed against appellee.
      CSsaFor other oases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: DAVIDSON, P. J.

license: Public Domain

text:
    RICHARDSON v. STATE.
    (No. 5106.)
    (Court of Criminal Appeals of Texas.
    June 28, 1918.)
    1. Criminal Law €=>1090(1) — Appeal — Scope.
    Where the record on appeal from conviction of burglary is without bill of exceptions or exceptions to the charge of court, the court is limited to the question made by the motion for new trial, that the evidence is insufficient.
    2. Burglary <§=>42(1) — Evidence — SUFFICIENCY.
    Evidence that a house was burglarized and property taken, and that a short.time thereafter accused was found in possession of the stolen goods and pawned them, is sufficient to connect the accused with the burglary.
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    George Richardson was convicted of burglary, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of burglary, and allotted two years in the penitentiary.

The record being without bills of exception, or exceptions to the charge of the court, we are relegated to the question made by the motion for new trial, that the evidence is' insufficient. We deem it unnecessary to state the testimony, but conclude, from a careful revision of the evidence, the jury was justified in reaching their conclusion.

The house was burglarized and the property of the owner taken. A short time after the 'burglary, appellant was found in possession of the stolen goods, and pawned them. The evidence we think is sufficient to connect the appellant with the burglary under the authorities, and the judgment will be affirmed.


text:
    WILLIAMS v. STATE.
    (No. 5100.)
    (Court of Criminal Appeals of Texas.
    June 28, 1918.)
    Burglary €=>41(1) — Evidence—Sufficiency.
    Evidence held to warrant conviction of the offense of burglary.
    Appeal from District Court, Bowie County; H. P. O’Neal, Judge.
    Joe Williams was convicted of burglary, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of burglary; his punishment being assessed at two years’ confinement in the penitentiary.

The record contains no bills of exception, nor exceptions to the charge of the court. The case is one of fact. Shortly after the burglary, appellant was found in possession of the stolen property. The facts and circumstances attending his possession, and his own testimony, are sufficient to warrant the jury in reaching the conclusion they did — ■ that he was the party who burglarized the house. A victrola was taken from the burglarized house, and found in a room or place in a barrel with quite a lot of hay piled over the barrel. Wallace testified the room where the victrola was found belonged to him, and that appellant worked for him. The evidence excludes the idea that he (Wallace) placed the victrola at the designated point. It seems these two only had keys to the house that would unlock and lock this particular house or room. The other goods were found in appellant’s house in his trunk, but at a different place. His account of his possession of the goods found in his trunk was of such character, under the facts and circumstances, we think the jury was warranted in reaching the conclusion they did. 1-Ie admitted placing the goods in the trunk. It is unnecessary to go into a detailed statement of his story with reference to the matter.

Believing the case is sufficiently made out to justify the verdict, the judgment will be affirmed.


text:
    GOMEZ v. STATE.
    (No. 5030.)
    (Court of Criminal Appeals of Texas.
    June 19, 1918.)
    1. Larceny €=^40(2) — Larceny of Cattle-Allegation of Ownership — Proof.
    Where an indictment for the theft of one head of cattle alleged ownership in a certain person, it was necessary to prove such allegation.
    2. Larceny <⅜^60 — Larceny of Cattle — Ownership — Sufficiency of Evidence.
    Under an indictment for the theft of one head of cattle from a certain named person, evidence held insufficient to show ownership or possession in that person.
    3. Sales <S=>201(1) — Contract — Passing of Title.
    . Under a contract for the purchase of cattle providing that, if any cattle of a certain brand were thereafter found, they were to be placed in the buyer’s brand and that he should account to the seller therefor, title would not pass to him until he had obtained possession of any such cattle.
    Appeal from District Court, Jim Wells County ; V. W. Taylor, Judge.
    Gregorio Gomez was convicted of .the theft of one head of cattle, and he appeals.
    Reversed, and cause remanded.
    W. R. Perkins, of Alice, and James B. Wells and C. G. Eorry, both of Brownsville, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was charged by indictment with the theft of one head of cattle from Henry Edds.

Several questions are presented for revision, hut the controlling and central thought, both from the facts and other legal aspects, centers in the proposition that the cow was not the property or in possession of Edds at the time of the taking. In a general way the facts show that the animal carried what they called the “Madrigal brand.” Madrigal was the owner of a ranch in the state of Nuevlo Leon, Mexico, and sold 830 head of cattle which were brought into Texas. There were eight head lost. So that the purchaser arrived at the ranch in Texas with 822 head. Some of these were also lost or were unaccounted for when Edds became the purchaser. Edds bought 600 or about 600 head which were delivered to him and for which he paid. In the contract it seems to have been stipulated that if any of the remaining 822 head were found by Edds he was to account for them by payment, but he was not to be charged with these cattle, nor did they pass to his possession or ownership until they had been passed into Edds’ actual possession, or the possession of his agents. The cattle bought by Edds were branded in what they called the flat O' brand. By this means the cattle that became the property of Edds were designated.' He, it seems, claimed none of the cattle as actually his until the flat O brand had been placed upon them. A party named Hinojosa brought the cattle from Mexico, and sold them to Guerra, and Guerra sold about 600 head of the cattle to Edds. Madrigal had agents who were authorized to collect any of the cattle in Madrigal’s brand and to account for them, and among others was a man named Garcia. Julio Madrigal, son of the owner of the Madrigal brand, testified:

“I know the time that some cattle were sold to Hon Hinojosa. At this time when they were selling these cattle they lost a great many of •them on that side, on the other side of the river, and my father had left in charge there some one to gather those cattle and sell them, among whom were Pancho Guerra, Juan Garcia, and Antonio Lopez.”

With reference to the employment of Juan Garcia by witness’ father, he testified that:

“Juan Garcia was instructed and employed by him, and his duties and authorities were that if any of Ms animals showed up around Mier or those little towns or places, to sell them and make an accounting of them to him. I know whether or not Juan Garcia sold any animals and accounted to my father for them. He sold some cattle and accounted to my father for their sale. This was about three or four years ago. I don’t remember exactly the time. My father lost a great many cattle by theft and otherwise along about that time. Juan Garcia about that time lived around Mier Guerrero, and Camargo.”

The bringing of the cattle by Hino-josa into Texas was during the year 1913. Appellant claims to have bought the cow in question and others from Juan Garcia. This particular cow carried the Madrigal brand. When the cattle were taken by the sheriff, this particular cow carried the Madrigal brand, and also appellant’s brand, which was “18.” It did not have on it the flat O brand of Edds. As we understand this record, Edds was never in possession of the animal, nor was his agent. Edds himself was never at any time in possession of the animal. His oniy claim or title to the animal was through that of his contract with Guerra, which was to the effect, as they discovered any cattle in the Madrigal brand, or aronnd the Guerra pasture, they were to be placed in Edds flat O brand, and Edds was to account to Guerra for the cattle. The title under this contract would not pass to Mr. Edds until he had obtained possession of the animals, and the testimony fails to indicate that the flat O brand was ever placed on this animal, or that Edds was ever in possession of it. The indictment having alleged ownership in Edds, it was necessary to prove this allegation. If it had shown that the animal carried his brand and that it ran in the accustomed range, this might be evidence of the fact that it was his cow, and by this means was in his possession; but the evidence fails to show this fact. It also fails to show that he was ever in possession of the animal with or without the flat O brand on it. The title would not, therefore, under the contract pass to him as owner of it until he had taken possession of it under the contract. His ownership of the cattle depended upon the fact that he first secure possession. He did not account to Guerra for this animal before possession was in appellant, if he ever did afterward. From any viewpoint of this testimony we fail to see that Edds was ever the owner or in possession of the animal. He did not have actual possession. He seems to know nothing about the cow until after it had been taken from appellant’s agent. It seems it was not taken personally from appellant-Edds had not placed his brand upon it, and there was nothing to indicate, as we understand this testimony, that possession and ownership ever passed to Edds from any viewpoint of the testimony. The ownership would be in Guerra if it was one of the 822 head that he bought until it had been delivered to Edds, or at least until Edds had possession of it under his contract. If either of the three agents of Madrigal had sold any of those animals, that would pass title to the purchaser from the agent. It would not confer title or place possession of such animal in Edds. Edds, under such circumstances, would not be the owner, and would not be responsible to Guerra for the value of the animal. Edds was only to obtain possession from an account to Guerra for those cattle that were found and placed in his possession. Under these facts, certainly it would not be held that Guerra could hold Edds responsible for the value of the cattle, if one of Guerra’s cattle. Edds would plead, and legally correct, that he was not responsible for the cow for he had never obtained possession.- The fact that he obtained possession of it after it had gone into the possession of defendant from Juan Garcia would not authorize Edds to take possession of it after such transfer under his contract with Guerra, because in any event Edds’ possession of it could only be after the taking by appellant, if he did take it. It was not Edds’ cattle until he got possession of it under his contract with Guerra. At the time he secured possession, if it be held he secured possession from appellant, the theft, if any, had been committed — not from Edds, but from the owner. Without going into a detailed review of the law and questions suggested, the above is the basis of the case, and we hold that under this testimony the ownership in Edds was not shown.

The judgment will be reversed, and the cause remanded.
      <S=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MORROW, J.

text:
    WILLIAMS v. STATE.
    (No. 4980.)
    (Court of Criminal Appeals of Texas.
    June 28, 1918.)
    Fences <s^28(3) — Offenses—Cutting Fences —Evidence—Sufficiency.
    In a prosecution for wantonly and willfully cutting fences not defendant’s own, evidence held insufficient to sustain a verdict of guilty.
    Appeal from District Court, Burleson County; R. J. Alexander, Judge.
    Sam Williams was convicted of cutting fences, and he appeals.
    Reversed and remanded.
    W. H. Reid, of Somerville, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant is condemned to the penitentiary for a period of two years for the offense of w%ntonly and willfully cutting a fence which whs not his own property, nor upon property owned by him, nor upon which he resided.

It appears that appellant’s rather and mother resided upon two tracts of land adjoining, aggregating 257 acres; that one of the tracts was acquired by the father of appellant during the lifetime of his first wife, by whom there was one child; that appellant a boy about 20 years of age, and his mother, probably some brothers and sisters, resided upon the entire 257 acres, cultivating it and using it as a farm; that a partition suit was filed by the half-sister, daughter of the first marriage, and in the suit there was set aside to her 84½ acres of land which she conveyed to the owners named in the indictment. The petition in this suit is- not before this court, nor is the judgment decreeing the partition. There appears attached as an exhibit to the statement of facts a judgment on the report of the commissioners. The attorney who represented the plaintiff in the partition suit testified that in the partition and decree he recognized the ownership in defendant in part of the land. It does not appear, however, that appellant was a party to the suit. There was . no pleading for the defendants in the partition suit, and we infer no appointment of guardian ad litem for appellant who was a minor. See R. S. 1911, art. 1942. There is verbal testimony that a writ of possession was issued and served upon the mother of appellant and one 'of her daughters, and her husband; but it affirmatively appears that it was not served upon the appellant, and did not run against him. Appellant said that he removed the fence because he was claiming an interest in the land, he and his mother paying taxes upon the entire tract; that he had never been dispossessed of any of it; that he did not live on the particular 84 acres claimed by the vendees of his sister; that no one lived thereon; that it was in the same inclosure with the remainder of the 257-acre tract, where he had lived all his life.

The allegation is that his acts were willfully and wantonly done to injure Wood, Henslee, and Murray. His testimony that he did not know that these alleged owners had a conveyance to the land is not controverted by evidence. Their deed was not recorded when the fence was removed. The fence was across land of which he was a joint possessor, and in which he inherited an interest from his father, which is not shown to have been divested. He openly removed the fence, and the facts point with more cogency to the inference that his intent was to protect his rights in the land against what he believed a trespass, than to an intent to injure the persons named in the indictment, of whose interest, according to the record, he had no knowledge.

There are several bills of exception which we regard unnecessary to notice for the reason that in our opinion the evidence in the record is not sufficient to establish a willful and wanton violation of the law.

The judgment of the lower court is reversed and the cause remanded.


text:
    HUGHES v. STATE.
    (No. 4800.)
    (Court of Criminal Appeals of Texas.
    June 12, 1918.)
    1. Criminal Law <§=»917(2) — New Trial.
    Where there was a sharp issue of fact touching the immediate incidents of a homicide, it was error to deny a motion for new trial for refusal of continuance on account of the absence of a witness, whose absence was satisfactorily accounted for, and whose testimony, if believed, might have resulted in a verdict of acquittal.
    2. Constitutional Law <S=>61 — Courts 62 — Delegation of Power — Suspension of Laws.
    Acts 35th Leg. c. 93, § 19 (Vernon’s Ann. Civ. St. Supp. 1918, art. 30), providing that if the court in the Twentieth and Eighty-Fifth Judicial districts is in session by virtue of existing laws at the time the act becomes effective, the act will not be operative until after the term shall have expired or be terminated by order of the judge is not unconstitutional as delegating to the judge the power to suspend laws, contrary to Const, art. 1, § 28, which vests that power in the Legislature alone.
    8. Witnesses <©=36 — Convicts.
    Pen. Code 1911, § 1617, making the evidence of convicts competent in prosecutions against one who, while a convict guard, assaults a convict, is valid.
    4. Homicide <©=159 — Evidence — State oe Hind.
    In prosecution of a convict guard for killing-convict, evidence that shortly before the homicide the defendant whipped the deceased was admissible to show defendant’s state of mind touching the deceased.
    Appeal from District Court, Robertson County; H. S. Morebead, Judge.
    L. A. Hughes was convicted of manslaughter, and he appeals.
    Reversed and remanded.
    J. C. Scott and Roy D. L. Killough, both of Eranltlin, and J. Eelton Lane, of Hearne, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant, under indictment for murder, was convicted of manslaughter.

He was an employé of the state penitentiary, guarding convicts, and shot and killed Gaston Pope, a convict. The controverted issue was under what circumstances the homicide took place. The state’s theory tended to show an unprovoked murder; that of appellant pointed to justification upon the ground of self-defense. To support its theory the state relied upon the testimony of several witnesses who were convicts. It appears that shortly after the homicide each of these state’s witnesses signed a written statement, giving their respective versions of the incidents of the occurrence. Each of these statements were favorable to appellant’s theory, stating, in substance, that at the time he was shot deceased was approaching appellant with a hoe in his hands; that his words and attitude ■ were threatening; that appellant called upon him more than once to stop before he fired the fatal shot, which took effect in the breast of deceased. We quote from the written statement of one of these witnesses as follows:

“The first I saw or heard was I heard Pope say, ‘By God, Boss, you got me to kill,’ and then he turned around and started toward Boss Hughes with his hoe and Boss Hughes told him if he come at him with that hoe he would kill him, and Pope went on pretty close to him.”

On the trial of the case each of these witnesses gave damaging testimony against the appellant in conflict with the witnesses’ written statements, claiming, in substance, that the written statements were not true, but were made under the influence of various officers of the penitentiary system, and were unduly favorable to appellant becauSe of fear upon the part of the witnesses to make them otherwise. This was controverted by the several witnesses who were present at the time the statements were taken, including a justice of the peace, who testified, in substance, that he read over the written statements to the witnesses; that they were not threatened; that the only person present with him was a man who was not connected with the penitentiary system; that the men severally acknowledged in his presence the truth of the statements, and. stated they would swear thereto; that it was possible that part of the time one of the defendant’s witnesses, who was an employé of the prison system, was present.

Appellant made a first application for a continuance, alleging, among other things, that A. E. Schacke, an eyewitness for whose attendance diligence had been used, was sick and unable to attend the trial. It appears that this witness was a convict, and that he, with the other convict witnesses, had made a written statement which was attached to the motion for a continuance, and contained the following:

“I was in Boss Lee Hughes squad when he killed Gaston Pope. The first I saw was when Pope passed me, going toward Boss Hughes with a hoe in his hand, and said, ‘God damn you, you have got to kill me.’ Boss Hughes said, ‘Don’t come too close to me with that hoe.’ The next I heard was the gun fired.”

Appellant testified, in substance, that deceased, when 25 or 30 steps ahead of him, turned around and came back, at him with his hoe on his shoulder, saying he was going to “make me kill him, when I told him to throw his hoe down and stop. Deceased was taking long steps tolerable fast; he had his hoe over his shoulder (illustrating); that deceased said, ‘God damn you, I am going to make you kill me.’ ” Deceased was told by appellant several times to stop, but continued advancing. The. hoe was exhibited in evidence. Appellant said, “I knew he would kill me with the hoe if I did not stop him.” He said deceased continued advancing until he was shot. Patrick, the assistant manager of the farms, who was in charge of the squads of convicts, one of which was under appellant’s immediate direction, testified, corroborating the -statement of appellant as to the manner in which the homicide took place. Patrick said:

“Pope was somewhere up about the head of the squad, and he just drawed his hoe' back and started at the defendant, cursing- him. Pope said, ‘God damn you; you have got to kill me or I am going to get you.’ Mr. Hughes told Mm to stop. He told him to stop two or three times. Mr. Hughes had his gloves on his hands at the time, and laid his gun down between him and his saddle and pulled off one of his gloves, and told deceased to lay down his hoe or he would kill him. Deceased continued to advance until he was about 12 feet from appellant, when the shot was fired.”

Witness said the hoe, in his judgment, was a deadly weapon, and that Pope could have killed appellant with it.

On the hearing of the application for a new trial there was before the court an affidavit of the witness A. E. Sckacke, which, we copy as follows:

“I appeared as a witness before Justice. W. O. Lovelace, the justice of the peace at the inquest proceedings on the body' of Gaston Pope. The statement that X made and swore to -before the justice of the peace was true. I was present at the time that Gaston Pope was killed by L. A. Hughes. At the time he was killed deceased was walking up on Mr. Hughes with a hoe in his hands, and said to Mr. Hughes: ‘Damn you, you have got to kill me.’ He was carrying it in his hand with the hoe part up. He was walking a little faster than an ordinary walk. Mr. Hughes, while the deceased was walking up on him, said, ‘Stay on back, keep your distance away from me, don’t come up on me; don’t come up close to me at all.’ Pie walked right up on Mr. Hughes, who was sitting on the horse, and next thing I heard was the gun fire. I never at any time saw Mr. Hughes whip the deceased. I was before the grand jury, and was subpoenaed as a witness, but was too sick to attend the trial of the case, which began July 23, 1917. I was sick in bed, and unable to come to court. I was brought up here to-day.”

We are of opinion that, in view of the record disclosing, as it does, a sharp issue of fact touching the immediate incidents of the homicide, the trial court was in error in failing to grant the motion for a new trial. The appellant was entitled to have the jury determine the controverted issue, and it cannot be said that the testimony of the absent witness would not have had weight with the jury. His testimony, if true, supported the •theory of appellant, and, if believed, might have resulted in a verdict of acquittal. Appellant had used diligence to procure the attendance of the witness. His absence was accounted for in a satisfactory manner, and it is appellant’s right to have the jury determine whether the testimony of this witness was true or false. Among the eases in point are Roquemore v. State, 54 Tex. Cr. R. 593, 114 S. W. 140, and Woods v. State, 203 S. W. 55.

The contention of appellant that the district' court of Robertson county was not in session at the time the indictment was filed cannot be sustained. The contention of appellant is not made right clear. As we understand it, however, it asserts the proposition that chapter 96, p. 256, Acts 35th Leg. (Vernon’s Ann. Oiv. St. Supp. 1918, art. 30), reorganizing the Twentieth and creating the Eighty-Fifth judicial districts, operated to terminate the session of court at which the bill was returned before the date the indictment was returned, and that section 19 of the act, providing that, if court is in session by virtue of existing laws at the time that this act becomes effective, this act shall not be operative as .to said court so in session ■until after the term shall have expired or shall be terminated by order of the judge, is an unconstitutional provision, delegating, to the judge the power to suspend laws contrary to article 1, § 28, of the Constitution, which vests that power in the Legislature alone. This view, we think, is unsound. If there is any suspension of ,⅛§ law in this instance, it is by the Legislature and not by the judge.

Appellant has presented no convincing reason supporting his claim of the invalidity of article 1617, P. C., which makes competent the evidence of convicts in prosecutions against one who, while a convict guard, assaults a convict, and we think his view that the evidence that shortly before the homicide he whipped the deceased was inadmissible should not be sustained. It tended to show appellant’s state of mind touching the deceased.

The other assignments, presenting no reversible error, will not be discussed in detail.

For the error pointed out the judgment of the lower court is reversed, and the cause remanded.
      ©cs>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      l©=Por other ease.: see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, J.

text:
    MILLS v. STATE.
    (No. 5055.)
    (Court of Criminal Appeals of Texas.
    June 5, 1918.
    Rehearing Denied June 28, 1918.)
    1. Criminal Law <@=>595(1) — Continuance— Absence or Witness — Materiality oe Expected Evidence. . „
    In prosecution for homicide, absence of witness expected to prove that the wound penetrated straight in, and that therefore deceased was standing straight when accused stabbed him, was not sufficient ground for continuance; it being immaterial whether wound was straight or slanting or whether deceased was stooping or standing straight at time of stabbing.
    2. Criminal Law <@=>603(11) — Continuance — Application — Diligence in Securing Expected Witness.
    An application for continuance based on absence of witness must state facts .showing that due diligence had been used in effort to obtain the witness.
    3. Criminal Law <g=>603(2) — Continuance-Application — Absence oe Witness.
    Application for continuance based on absence of witness must state residence of witness, and time when he left the county of his residence, if temporarily absent therefrom.
    4. Criminal Law <@=>598(7) — Continuance— Absence oe Witness — Diligence — Suing Out Process.
    Where a subpoenaed witness moved to another county before the term of court at which the case was called for trial, the party applying for continuance because of absence of such witness has not exercised proper diligence in effort to procure his attendance if he did not again subpoena witness in the county to which he had moved.
    5. Criminal Law <@=>959 — New Trial — Right oe State to Introduce, Evidence.
    Under Code Civ. Proc. 1911, art. 841, providing that state may take issue with defendant upon truth of any cause set forth in motion for new trial, on motion for new trial based on overruling of motion for continuance because of absence of witness, state had right to show lack of diligence in procuring attendance of such witness.
    6. Criminal Law <@=>1144(18) — Appeal—Bill oe Exceptions — New Trial.
    Where bill of exception does not show evidence on which court overruled motion for new trial, the evidence will be presumed on appeal to have been sufficient to have sustained such ruling.

      Appeal from District Court, Rusk County; Daniel Walker, Judge.
    Ernest Mills was convicted of murder,- and lie appeals.
    Affirmed.
    Dutch & Tipps, of Henderson, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

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

The evidence, without any contradiction, by several witnesses showed that appellant stabbed deceased in the head with a knife and killed him without any justification or provocation. The circumstances of the stabbing and killing were such as to be sufficient to show that the killing was with malice aforethought by appellant.

The only question in the case is whether or not the court erred in overruling his motion for a continuance and in overruing his motion for new trial on that ground.

The motion for continuance was made because of the absence of Dr. Barton. . Dr. Barton was not present when the stabbing occurred and knew nothing about the facts surrounding the parties at that time. In order to attempt to show the materiality of the doctor’s testimony, he alleged that the eyewitnesses for the state would testify that deceased was somewhat in a stooping position preparing to get down on his. knees when appellant stabbed him in the head, and that the theory of the state on the trial would be that the wound did not penetrate straight in, but in a kind of slanting position. That he expected to prove by ⅛⅛ doctor, who was called to. see deceased the next day after the stabbing, that if it had been made while deceased was in a stooping position the wound would not have penetrated straight in as it did, but would have to be slanting toward the head of deceased. Whether the deceased was standing straight or stooping at the time appellant stabbed him could not have been very material, and such an inference from the doctor’s testimony, even if he had testified as claimed, would not have been material in the case. The stab, without any doubt, killed the deceased. Appellant stabbed him, and whether the knife blade went in straight or slanting could make no difference. However, if it could be conceded that the testimony of the doctor would in any contingency have been material, no reversible error is shown.

The record in this matter shows this state of fact: The killing occurred the last of April, 1917. The examining trial was held the day after the deceased died, at which appellant and his attorneys were present, and the eyewitnesses of the killing for the state then all testified. Of course, appellant and his attorneys were fully advised what each of these eyewitnesses would testify. The indictment was returned June 2Sth. The case was to be tried on July 17th. At that time said witness Dr. Barton lived in Busk county near where the killing occurred. He was subpoenaed by appellant to attend the trial on July 17ttí. The motion for continuance does not state that said witness attended the court at that time or at any other time. It states that the cause was not called for trial on that date. Why it was not, or what disposition .was then made of it, was not alleged. The law is that “it devolves upon the defendant to show, affirmatively and distinctly, that he has used all the diligence to obtain his witness required by law.” And the state is not required to show a want of diligence in opposition to a continuance.

“Nothing, is presumed in aid of an application for a continuance, but the burden, is upon the party seeking a continuance to show himself entitled to it by definite, exact, and certain averments. Cantu v. State, 1 Tex. App. 402; Murray v. State, Id. 417; Buie v. State, Id. 452; Bowen v. State, 3 Tex. App. 617; Robles v. State, 5 Tex. App. 346.” Walker v. State, 13 Tex. App. 647, 648.
Again:
“An application for a continuance should set forth fully and distinctly the diligence used to obtain the absent testimony, s ⅜ * and it must appear that all the means provided by law were resorted to by the defendant to obtain the testimony and were resorted to promptly.” Barrett v. State, 18 Tex. App. 67.
Again:
“The burden is upon the party seeking a continuance to show himself entitled to it by definite, exact, and certain averments.” Long v. State, 17 Tex. App. 129.
Again:
“If there is a lack of diligence, apparent from the application or otherwise,” the law’s “mandate is inexorable and the trial must proceed.” Skipworth v. State, 8 Tex. App. 139.
The statute (article 530, C. O. P.) enacts:
“It shall be understood that a witness refuses to obey a subpoena: (1) If he is not in attendance on the court on the day set apart for taking up the criminal docket or any day subsequent thereto, and before the final disposition or continuance of the particular case in which he is a witness. (2) If he is not in attendance at any other time named in a writ.”
Judge White, in section 600 of his An. O. O. P., says: “Continuance is properly refused always where there is a want of diligence”— citing a considerable number of cases to that effect. Giles v. State, 66 Tex. Cr. R. 642, 148 S. W. 317.

The m§tion for continuance alleged that said witness, Dr. Barton, is now “located at Camp Logan base hospital,' Harris county, Texas.” The law is:

“An application for a continuance must state the residence of the witness; and, when it states that the witness is temporarily absent, it should state how long he had been so absent, and when he left the county of his residence. Dove v. State, 36 Tex. Cr. R. 105 [35 S. W. 648]; Vanwey v. State, 41 Tex. 639 ; Wolf v. State, 4 Tex. App. 332; Thomas v. State, 17 Tex. App. 437; Colton v. State, 7 Tex. App. 50. Where the application for a continuance did not show at what time the defendant ascertained that the witness was a resident of the County to which he had a second attachment issued, the diligence was insufficient. Hughes v. State, 18 Tex. App. 130.” Furnace v. State, 79 Tex. Cr. R. 65, 182 S. W. 457.

The law further is that where a witness lives in the county where the case is pending, who has been subpoenaed, and removes therefrom before the next term of court at which the ease is called for trial, it is the duty of the appellant to again have him served with process to the county where he has removed. Nesbitt v. State, 60 Tex. Cr. R. 274, 155 S. W. 203; Jones v. State, 61 Tex. Cr. R. 656, 136 S. W. 57; Harvey v. State, 35 Tex. Cr. R. 558, 34 S. W. 623; Lowe v. State, 11 Tex. App. 253.

The motion for a continuance does not allege that the absent witness was in attendance upon the court when the term at which he was tried began, nor at any other time of said term of court. The term began January 17, 1918. His trial did not begin until January 29th. No process was issued for the witness to Harris county at any time. The motion fails to state that the witness was in any way notified to be present at the beginning of said term or on the date on which the case was called for trial. The slightest diligence by appellant would require that the witness in some way he notified to be present, since he had left the county. The means of communication by telephone or telegraph are not shown to have been used to inform the witness or to get him present at the trial.

But aside from all this, appellant made a motion for a new trial because of the overruling of his motion for a continuance. The state especially contested the appellant’s motion for new trial, not only on that ground, but all the others set up in his motion. At that time the state had the right to contest the diligence of appellant to secure the attendance of the said witness and did do so. Richardson v. State, 28 Tex. App. 216, 12 S. W. 879; Walker v. State, 13 Tex. App. 618; article 841, C. C. P. The judgment of the court expressly states that he heard evidence before acting upon said motion and after hearing the evidence overruled the motion for new trial. The court’s qualification of appellant’s hill expressly states that the state contested his motion for new trial, that he heard evidence on it, and that the evidence introduced by the state on that occasion was not contained in the bill of exception. Under such circumstances, this court has all the time held in a uniform and long line of decisions that it inust presume, and does, that thé evidence heard by the lower court was .sufficient to show that appellant was not entitled to a new trial. See Reyes v. State, 196 S. W. 533, where a large number of cases are collated.

So that in no contingency does the action of the court show any error in overruling the appellant’s motion for a continuance or his motion .for new trial on that ground. On the contrary, the record without doubt shows that the action of the court was legal and correct in both instances.

The judgment is affirmed.
      ©^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: GAINES, Special Judge. PRENDERGAST, J. DAVIDSON, P. J.

text:
    ALEXANDER v. STATE.
    (No. 4704.)
    (Court of Criminal Appeals of Texas.
    May 1, 1918.
    Appellant’s Motion for Rehearing Denied June 19, 1918.
    Dissenting Opinions June 19, 28, 1918.)
    1. Courts <§=>66(7) — District Courts — Extension of Regular Term — Statute—“Or.”
    Acts 34th Leg. c. 139, providing that the term in the district court of Sixty-Sixth judicial district comprising county of Hill beginning on the first Monday of March “may continue in session for a period of seven weeks or until the business is disposed of,” authorized the extension of the March term of the district court of Hill county beyond the end of the seven weeks specified, where the business of the grand jury was unfinished, and an indictment returned during the extension was not invalid for that reason, but was returned into open court as required by Code Or. Proc. 1911, art. 445; the word “or” in the quoted portion of the statute being used in the sense of “and.”
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Or.]
    2. Courts <®=>66(7) — District Courts — Extension of Regular Term — Order.
    While an order entered on the minutes may not have been necessary to extend a regular term of district court under Acts 34th Leg. e. 139, such order did not destroy the power existing under such statute or bring the extension within Rev. St. 1911, ait. 1726, authorizing extension on different grounds and requiring an order.
    3. Statutes <©=>197 — Construction—“Ob”— “And.”
    • While “or” is a disjunctive conjunction and the term “and” ⅛ a conjunctive conjunction, the words are not words of technical meaning and are to receive in law the same meaning they carry in common parlance; the . terms being mere “colorless particles” deriving their meaning and force from what comes before and after (citing Words and Phrases, Or; see, also, Words and Phrases, First and Second Series, And).
    4. Statutes <©=>212 — Construction.
    It is the duty of the courts to presume that the Legislature intended to charge all language used by it with a meaning and purpose, especially when the language is an adopted phrase or bears evidence of having been chosen with care or is a phrase of long and frequent usage in the same connection or others involving a similar principle of construction.
    5. Statutes <©=3209 — Construction—Legislative Intent.
    In the absence of any direct judicial interpretation of the language under construction, its use in substantially the same connection, where its meaning is undisputed, would afford the best guide to tbe legislative intent.
    6. Constitutional Law <S=>14 — Language of the Constitution.
    The language of the Constitution may be presumed to have been chosen with more care than that of any other legislation.
    7. Statutes <©=>197 — Intent of Legislature —Presumption.
    It being plain that in the Constitution the terms “and” and “or” are used as convertible terms, it will be presumed that the Legislature used them in that sense in a statute.

      8. Intoxicating Liquors <a=>212— Sale in Local Option Territory — bursuing Business-Indictment.
    An indictment for pursuing the business of selling intoxicants in local option territory, alleging that on or about the 25th clay of April, A. I). 1917, and anterior to the presentment of the indictment, defendant in a named county did then and there engage in and pursue the occupation anti business of selling intoxicating liquor, and setting out the dates of numerous specific sales, is not defective, in that no sales are alleged to have been made on or after the day defendant is alleged to be engaged in the business on which day the hill was returned; at least two specific sales within three years being specified.
    9. Criminal Law @=1169(1) — Admission on Incompetent Testimony — Harmless Error.
    While evidence of sales of intoxicants subsequent to date alleged in indictment was inadmissible, where the same witnesses testified to numerous sales prior to such date, the evidence was not material to the state, and its admission was without prejudice to defendant. (Per Gaines, Special Judge.)
    10. Intoxicating Liquors @=169 — Sale in Local Option Territory.
    If defendant had no interest in'and did not reap any profits from sale of whisky, but procured it as an accommodation, it would not constitute a “sale.” (Per Gaines, Special Judge.)
    11. Criminal Law @=823(1) — Omissions in Matn Charge — Cube.
    “Where a requested charge substantially covering defendant's theory was given, it would cure the omission in the main charge. (Per Gaines, Special Judge.)
    12. Criminal Law @==>778(5) — Pursuing Business in Local Option Territory — Instructions.
    In prosecution for pursuing business of selling intoxicants in local option territory, an instruction that if defendant did not engage in the business of selling as alleged in the indictment and did not make two sales of intoxicants within three years next before the date mentioned in the indictment, or if from the testimony there is a reasonable doubt that he made two sales within said time, the finding should he not guilty, was erroneous, in that it put the burden of proof on defendant and applied the principle of reasonable doubt only to the issue of two sains and not to the issue whether defendant was engaged in the business of selling. (Per Gaines, Special Judge.)
    13. Criminal Law @=8G1 — Eeeeot op Admission.
    Permitting the state to exhibit one by one sixteen bottles of whisky in the presence of the jury, after defendant had admitted every material and admissible fact that could have been established by the exhibition of the whisky, was error. (Per Gaines, Special Judge.)
    14. Courts @=66(7) — District Courts — Extension op Regular Term — Statute—“Or.”
    Ants 34th Leg. c. 139, providing that the term in the district court of the Sixty-Sixth judicial district comprising the county of Hill beginning on the first Monday of March “may continue in session for a period of seven weeks or until the business is disposed of.” did not authorize the extension of the March term of the district court of Hill countv beyond the end of the seven weeks specified because the business of the grand jury was not finished, and an indictment returned during extension would be invalid: the word “or” in the quoted portion of the statute being disjunctive, implying the alternative and meaning “unless.” (Per Davidson. P. J.)
    Davidson, P. J., and Prendergast, J., dissenting in part.
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Dave Alexander was convicted of pursuing the business of selling intoxicating liquor in local option territory, and appeals.
    Reversed.
    Collins, Morrow & Morrow, of Hillsboro, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   GAINES, Special Judge.

Appellant was convicted in the district court of Hill county of pursuing the business of selling intoxicating liquor in local option territory.

The most serious question in the case arises on a motion to quash the indictment on the ground that the bill was returned after the term of court had expired by operation of law. The indictment was returned April 25, 1917. The Act of the 34th Legislature, page 218, hereafter referred to as the Act of 1915, reads as follows:

“The terms of the district court in the sixty-sixth judicial district of Texas, comprising ⅛⅛ county of Hill, shall be holden in said county of Hill as follows: Beginning on the first Mondays in January, March, May, July, September and November of each year. Each term of said court may continue in session for a period of seven weeks, or until the business is disposed of, save and except the term beginning annually on the first Monday in July may continue in session for the period of five weeks, or until the disposal of the business.”

The March term of said court completed the seventh week on April 21st. The grand jury is an auxiliary body of the district court, and a bill of indictment must be returned into open court. O. G. P. art. 445. Unless the court was in session under lawful authority on April 25th, the bill was not presented into open court or by a body having any legal existence as a grand jury. There are several statutes providing for holding special terms or for extending the regular terms under certain conditions, and all these have been carefully considered; but this was in no sense a special term, and, unless the statute above quoted gives such authority, there is but one other statute by which a regular term of court may be extended. That is article 1726 of the Revised Civil Statutes, which provides that:

“Whenever any district court” is “in the midst of the trial of any cause, when the time for the expiration of the term of said court, 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 ease, the extension of such term shall be shown in the minutes of the court before they are signed. In ease of the extension of the term of court, as herein provided, no term of court shall fail because thereof in any other county, but the term of court therein may be opened and held, as now provided by law, wdien the district judge fails to appear at the opening of a term of court.”

On April 21st, same being the last day of the seventh week, on the ground that the business could not be disposed oí on that day, the court entered an order in the minutes extending the term another week or until Saturday evening, April 28th. Clearly the term could not have been extended under article 1726; because, under that statute, an extension can only be had when the court “is in the midst of the trial of any cause when the time for the expiration of the term of said court, as fixed by law, shall arrive.” It affirmatively appears that the court was not “in the midst of the trial of any cause,” when the seven weeks expired. The conditions authorizing an extension not being in existence, there was no authority to extend under that statute. Commonwealth v. Mac-Lellan, 121 Mass. 31. This much has been written as to said statute, because counsel for appellant, assuming that the extension was attempted under that statute, have argued well that no such authority could have been derived from that source. However, it does not appear that the court based its authority on said statute. It appears from the order on the minutes and from the remarks of the court in overruling the motion to quash, preserved in the record by defendant’s bill of exceptions, that on April 21’st the grand jury came into open court and informed the judge that their business was unfinished, and upon their request an order was then entered extending the term for another week, during which this indictment was returned and other business transacted. The extension, therefore, clearly appears to have been based on the authority of the Act of 1915. It is true that the extension was evidenced by an order entered on the minutes, as required by article 1726; whereas, an order may not have been necessary under the Act of 1915, because in the one the authority of the court could only appear from such order, while in the other it would appear from the law itself, if such authority existed. But the entry of an unnecessary order would not destroy a power existing without the order or bring the extension under another statute requiring an order based on different grounds.

Was the extension authorized by the Act of 1915? The language of that act is:

“Each term of said court may continue in session * * * seven weeks, or until the business is disposed of.”

Is the effect of this language to limit the term to seven weeks, at all events, and authorize it to adjourn sooner if the business should be disposed of, or does it authorize the court to extend longer than seven weeks if necessary? Counsel for appellant in a very able brief and oral argument have presented the view that the word “or,” being an alternative term, does not mean the same as if the word “and” had been used, but is a term of limitation. This view is rendered the more plausible for two reasons: First, because, except in a very few instances, where the Legislature has granted authority to extend terms the usual expression has been: “May continue in session (-) weeks, and until the business is disposed of.” And, second, because the Act of 1905, p. 37, prescribing the terms of the district court in 1-Iill county prior to the present act, provided that the terms should begin on the same days as the present act, and that:

“Each term of said court shall continue in session until the Saturday before the beginning of the next succeeding term,'or until the business is disposed of.”

It will be observed that the language under construction is the same in each act, and that under the former act one term would “continue ⅜ * * until the Saturday before the beginning of the next succeeding term.” Persuasive as these arguments are, they are not conclusive. The term “or” is a disjunctive conjunction and the term “and” is a conjunctive conjunction, defined by the Century Dictionary as “a colorless particle.” In- the strict sense of precise definition, the one disjoins and the other conjoins ; the one is an alternative, and the other is a connective; the one1 carries an alternative meaning, as, you may do this, or that, but you cannot do both; the other, that you may do both this and that. Such is the restrictive or precise meaning of these terms; however, they are not words of technical meaning and are to receive, in the law, the same meaning they carry in common parlance. In themselves, these are empty terms;they have no inherent meaning; they are mere “colorless particles” that derive their meaning or force from what comes before and after. A review of such judicial construction as has been given them is of little value on the present question. Words and Phrases, yol. 6, pp. 5006 to 5011, inclusive, will show collated a larger- number of decisions construing these terms than will be found elsewhere. But all these amount only to this: That these terms derive their force and meaning from the context and connection of the matter in which they are used. Ordinarily, it will not do to reason to a conclusion from the restricted definition of an isolated word, and this is especially true of a term the meaning of which is as variant as the connections in which it may be employed. It may also be said that a careful search of the decisions has failed to reveal any case in this or any other state where language involving substantially this construction has passed under review. We are left, then, to determine the meaning of this phrase from the whole context of the matter in which it is used and from the use of similar phrases under conditions involving the same construction.

The language of the act is that: “Each term of said court may continue in session for a period of seven weeks.” If we eliminate -the following phrase, “or until the business is disposed of,” there is no question that tlie court would, still have authority to adjourn before the end of seven weeks if the business should sooner be disposed of. It follows, then, that the phrase, “or until the business is disposed of,” is either surplusage or means that the court may continue longer than seven weeks if necessary to dispose of the business, because without the addition of this phrase the court had undoubted power to continue seven weeks or adjourn sooner. It is the duty of the courts to presume that the Legislature intended to charge all language used by it with a meaning and purpose. This • is especially true when .the language is an adopted phrase or bears evidence of having been chosen with care or is a phrase of long and frequent usage in the same connection or others involving a similar principle of construction. But by reason of this very principle it is uiged with great force by counsel for appellant that the same language was used in the prior Act of 1905, that there was no, interval between the terms of court under that act, and that one term could not overlap another. It is true that the canons of the church have so far become a part of the common law that Sunday is dies noon juridieus, so that no judicial business may be transacted on that day, unless authorized by statute, except certain ministerial duties. Hanover Fire Ins. Co. v. Shrader & Rogers, 89 Tex. 35, 32 S. W. 872, 33 S. W. 112, 30 L. R. A. 498, 59 Am. St. Rep. 25; Harper v. State, 43 Tex. 431, 37 Cyc. 588. It would also seem that the weight of authority supports the proposition that, except in cases provided for by statute, of which this is not one, there may not be two regular terms of the same court in the same district at the same time where there is only one regular judge. Cory v. Richardson, 191 S. W. 568; McVay v. State, 104 Ark. 629, 150 S. W. 125; Tippy v. State, 35 Neb. 368, 53 N. W. 208; In re Millington, 24 Kan. 214.

The Legislature is presumed to have had these principles in mind. However, it is not so clear that under the Act of 1905 there was no interval, except Sunday, between the terms. The language of that act was, “and shall continue in session until the Saturday before the beginning of the next succeeding term.” The ordinary meaning of the language would imply that the ordinary term would end at midnight on Friday before, so that Saturday would intervene between the terms. However, the decision of this point is not deemed essential to the proposition here involved, and its probable interpretation as it may have been in the mind of the Legislature is alluded to as shedding light on the intent and meaning of the Act of 1905. The Legislature may have intended that the term should end at midnight Friday and may have regarded Saturday as sufficient for those small unfinished matters that “lag superfluous on the stage” of an expiring term when crowded off by heavy trials. As to whether such language would have the effect of ending the term on Friday night is a matter of such close reasoning, in the light of the conflicting decisions, that it cannot be said such was not the intent of the Legislature, and whether the correct interpretation of their language would give effect to that intent or not is immaterial here, because if such was the legislative intent it would be an additional reason why it should have intended the words, “or until the business is disposed of,” should have meant that if necessary the term could extend to include Saturday. Therefore it cannot be assumed that this language in the Act of 1905 could not have been intended to authorize an extension, but, if this could be assumed, still it would not necessarily thus limit the same language in the Act of 1915, because if, apart from that instance, the ordinary effect of the language is such as to allow an extension, but it was impossible in that instance by reason of the immediate opening of the next term, the language would still have the same general meaning and application, only its effect in that particular instance would have been in abeyance by reason of the impossibility of its application, for in such case if the Legislature had used the term “and” instead of “or” it could not have meant more.

In the absence of any direct judicial interpretation of the language under construction, the use of these phrases in substantially the same connection, where their meaning is undisputed, would seem to afford the best guide as to the legislative intent. A careful review of the legislation prescribing the-terms of the district courts, past and present, will show that, when the term is not fixed for a definite time, the prevailing phrase is, “and until the business is disposed of,” with an occasional use of the phrase, “or until the business is disposed of.” However, there is nothing in the context of the usage-/ of these phrases to indicate they are not convertible phrases and used in precisely the same sense. In the ordinance to the Constitution of 1876, written and adopted with the same ability and care as the Constitution itself, the state was divided into 26 judicial districts. In most instances, the language was, “and may continue in session - weeks;” in fourteen, “and may continue in session -until the business is. disposed of;” and, in one only, being the county of Marion, “and may continue in session eight weeks, or until the business of the term is disposed of.” Marion county was then at the end of the circuit and was the only term not immediately followed by another. So that there is more reason to suppose a grant of authority in that instance to extend than to curtail the term.

But the language of the Constitution may well be presumed to have been chosen with more care than that of any other legislation, and, while we do not find in that instrument similar language prescribing the terms of courts, we do find there precisely the same form of phraseology prescribing terms of office, and there is no sound reason why the construction of one should not involve a construction of the other. In prescribing the terms of office of the Attorney General, comptroller, county judge, justice of the peace, and constable, the Constitution provides that each shall hold his office for two years “and until his successor shall be elected and qualified” ; whereas, in prescribing the term of office for the Governor it provides that, “he shall hold his office for the term of two years, or until his successor shall be duly installed;” and in the case of judges of the Supreme Court that they “shall hold their offices for six years, or until their successors are elected and qualified.” And at the close of the same section it is provided that the judges in office at the time the Constitution is adopted “shall continue in office until the expiration of their terms of office under the present .Constitution, and until their successors are elected and qualified.”

It is thus made plain that in the language of the organic law of this state, chosen in measured terms, “and” and “or” are used as convertible terms, for it will be observed that the same article limits the term of a supreme judge to six years “or” until his successor is elected and qualified, and that those then holding office shall continue to the expiration of their terms “and” until their successors are elected and qualified. That each would hold over until his successor is elected and qualified is a self-evident proposition now beyond the pale of argument. It will also be observed that in the case of some of the officers above named the language of the Constitution is, “and until their successors are elected and qualified,” whereas, in the case of others the term “or” is used, and yet that they mean the same tiling is beyond all controversy. But, if there could be any doubt on this point, it is settled by the Constitution itself in article 16, § 17, wherein it is provided:

“All officers within this state shall continue to perform the duties of their offices until their successors shall be duly qualified.”

Now if it is perfectly clear, and it is, that the language, “he shall hold his office'for a term of two years (or six years as the case may be), or until his successor is elected and qualified,” means that such officers shall hold over after the expiration of their terms if necessary, it is equally clear that the language, “may continue in session for a period of seven weeks, or until the business is disposed of,” means that the court may hold over beyond the seven weeks, if necessary to dispose of the business. Again as illustrating the legislative interpretation, tire statute, in prescribing the terms of the supreme judges, uses the term “and” until their successors are elected, whereas, as set out above, the Constitution uses the term “or.” Of course, in case of conflict in their meaning the Constitution would prevail, but the Legislature is presumed to have meant the same as the Constitution on the same matter, and it amounts to a legislative interpretation that in this form of phraseology “or” means the same thing as “and.” Therefore both the history and example of the use of the language under construction lead inexorably to the conclusion that the phrase “may continue in session for the period of seven weeks, or until the business is disposed of,” authorized the extension of the district court of Hill county beyond the end of the seven weeks, and a bill of indictment returned during the extension would not be invalid for this reason.

The indictment alleged that:

“On or about the 25th day of April, A. D. 1917, and anterior to the presentment of this indictment, Dave Alexander, in Hill county, Tex., did then and there engage in and pursue the occupation and business of selling intoxicating liquor,” and then sets out the dates of numerous specific sales.

No sales are alleged to have been made on April 25th. The appellant contends that the indictment is defective, in that no sales are alleged to have been made on or after the day he is alleged to be engaged in the business. Spies could not have been alleged after April 25th, because the bill was returned on that day, and there is no apparent reason why the elements of the offense are not well pleaded when the allegation is that he was engaged in the business and at least two specific sales within three years are specified. There was evidence of a sale on the 25th and perhaps one on the 26th of April, and while it is true that subsequent sales are no part of the offense charged, and ordinarily would be inadmissible, in view of the testimony of the same witnesses to numerous anterior sales under the same general conditions, it is not believed this testimony ivas material to the state or prejudicial to the defendant.

The testimony shows that the principal witness for the state was one of those amateur detectives whose travels have been wide and his .avocations diversified. He testified that he was “sent out by his headquarters at Dallas to report to the county attorney of Hill county.” He seems to have thereafter associated, for his keep, a character similar to himself. They ingratiated themselves into the confidence of appellant, who was a negro bootblack in a barber shop in I-Iillshoro, and induced him to procure whisky for them from the town of West on divers and sundry occasions as alleged in the indictment, for which they gave him money either before or after the delivery of the whisky. Axrpellant did not deny procuring the whisky and taking the money for it, but when he was testifying in his own behalf his counsel sought to elicit from him testimony to the effect that he did not have any interest in or reap any profit from Ore whisky, but only got the same as an accommodation to the state’s witnesses. This testimony was objected to by the state on the ground that it was “hearsay” and excluded by the court— for what reason we are not advised, certainly not on the ground that it was hearsay. This was original and direct testimony going to the gist of the offense. It was practically the only question on the facts. If appellant was a mere agent or obtaining the whisky as an accommodation, it would not constitute a sale. Campbell v. State, 37 Tex. Cr. R. 572, 40 S. W. 282; Driver v. State, 48 Tex. Cr. R. 20, 85 S. W. 1056; Evans v. State, 55 Tex. Cr. R. 450, 117 S. W. 167; Robinson v. State, 196 S. W. 186. The gist of the offense is that of engaging in the business of selling intoxicating liquor. The question of the weight or probable truth of the testimony was not for the court. The jury may have preferred to have believed a negro bootblack rather than an amateur detective who encourages and im’tieipates with an ignorant negro in the commission of an offense in order that he may furnish evidence thereof for a reward. The testimony should have been admitted, and its exclusion by the court is error highly prejudicial to appellant.

Appellant also complains of the failure of the court to charge on this theory, but it appears that a requested charge covering substantially this issue was given, and this would cure the omission in the main charge.

Appellant complains of the following paragraph in the charge of the court:

“If you find from the testimony that defendant did not engage in the business of selling intoxicating liquor as alleged in the indictment and did not make two sales of intoxicating liquor within three years next before the 25th day of April, or if from the testimony you have a reasonable doubt that he made two sales within said time, then you will find the defendant not guilty.”

This charge is erroneous in two respects. It tends to put the burden of proof on appellant and applies the principle of reasonable doubt only to the issue of two sales. The law is that he must have engaged in the business and must have made at least two sa les within three years. Hte| is entitled to the benefit of the reasonable doubt on both issues. If the jury had a reasonable doubt as to whether he was engaged in the business, it would be as much their duty to acquit as if they had such doubt on the issue of the two sales, and in case of such doubt on either issue they should acquit. Mizell v. State, 59 Tex. Cr. R. 226, 128 S. W. 125; Robinson v. State, 196 S. W. 186.

In the progress of the trial, the state was about to exhibit the whisky in the presence of the jury for the purpose of refreshing the memory of the prosecuting witness, to identify the packages purchased, and to irrove it was whisky. Appellant thereupon admitted that;

“Where it is alleged and pi'oved that transactions were had with the prosecuting witnesses where the defendant delivered packages to said witnesses that the same were whisky and that said packages were the identical packages delivered by defendant to said prosecuting witness and then in the possession of the county attorney.”

Notwithstanding this admission in open court, the court permitted the county attorney to exhibit, one by one, sixteen bottles of whisky in the presence of the jury. The nature of the employment of this witness and the short time that had elapsed since the events on which he testified were such that this testimony was clearly not necessary to refresh his memory. This admission established every other material and admissible fact that could have been established by the exhibition of said whisky. Irs exhibition wiis therefore not necessary to any fact to he proven. But the psychological effect of such matters under all the circumstances must have been, highly prejudicial to the appellant. This is intensified by the fact that appellant presented a ploa for suspended sentence and the evidence was such that this would ordinarily have been granted. This is a right of appellant to be guarded as any other right involved in his trial.

The judgment is reversed, and the cause remanded.

DAVIDSON, P. J. I agree to reversal, but do not concur on first proposition in opinion.

MORROW, J., not sitting.

PRENDERGAST, J.

(concurring in part and dissenting in part). When the original opinion was handed down, I did not write my views. I now do so.

I concur with Special Judge GAINES in holding that the extension of the term of court at which the indictment herein was preferred was legal and valid.

The Act of 1905, p. 37, creating ¿Hill county a separate district, fixed the term of court to he held on the first Mondays in January, etc., of each year, and prescribed:

“Each term of said court shall continue in session until the Satúrday before the beginning of the next succeeding- term, or until all the business is disposed of.”

Doubtless the judge of that court and the officers concluded, as the act said, “shall continue,” etc., that it was mandatory and required the court to continue in session as stated, notwithstanding it had no business at all to transact for some time before the expiration of the term; and that the last words quoted, “or until all the business is disposed of,” gave the court power to extend the term beyond that fixed, if it had business on hand necessary to be disposed of. The Act of 1915, p. 218, amending that of 1905, fixed the term of court on the first Mondays of January, etc,, of each year. Then it said:

“Each term of said court may continue in session for a period of seven weeks, or until the business is disposed of.”

Thereby expressly authorizing the court to adjourn even before the seven weeks expired, and thereby removed the peremptory feature of the previous act requiring the court “shall continue,” etc. But at the same time giving ■the court power and authority to continue the court even longer than the seven weeks if the undisposed of business required it. I think there can be no question of the intent of the Legislature in the matter, and that the extension of the term by the judge in this instance was unquestionably a legal term of court during the time of extension.

I concur with Judge GAINES in holding the indictment, when attacked in another instance as stated, valid.

I do not concur, but dissent from Judge GAINES’ opinion wherein he comments unfavorably upon what he says was the state’s principal witness, as an “amateur detective,” and that he “associated, for his keep, a character similar to himself.” I think his criticism of these witnesses is in no way called for by the testimony or anything that occurred in the trial.

Neither do I concur in that portion of Judge GAINES’ opinion wherein he, at least by implication, lauds the appellant in this language:

“The jury may have preferred to believe a negro bootblack rather t%m an amateur detective who encourages and participates with an ignorant negro in the commission of an offense in order that he may furnish evidence thereof for a reward.”

I commend and approve the employment of detectives by the officers to aid them in ferreting out the violations of our liquor laws. I regard them as a necessity, and, instead of denouncing them, I commend them.

From Judge GAINES’ opinion one would be lead to think that the whole testimony of the state was that of one “amateur detective” and ano&er “character similar.” But such is not the case. Mr. Carroll, who is the one reproachfully designated as an “amateur detective,” was following a legitimate and praiseworthy business, that of a detective to ferret out crime. Before that he had followed honorable employment and no dishonorable at any time. He testified to separate and distinct purchases of intoxicating liquor from appellant, one on each of tírese dates in 1917: February 28th, March 2d, 4th, 9th, 20th, 21st, and April 25th. Mr. Franks, the good deputy sheriff of Hill county, testified that he saw Mr. Carroll make the purchases of liquor from appellant on March 2d and 5th, and tells such a state of circumstances as to show that he also saw the sale on March 9th. Mr. Currey, who must be the witness referred to as “a character similar to” Carroll, testified that he made separate and distinct purchases of intoxicating liquors from appellant on March 4th, 5th, and 7th. Another witness, Mr. Sealey, who escapes being designated as an “amateur detective” or “a character similar,” .testified that he bought intoxicating liquor from appellant on March 21st, April 20th, 21st, and 25th. Earl Pryor, who escaped odious designation, testified that he saw Sea-ley and Carroll buy liquor from appellant on March 23d. Mr. Eugene Pryor, another escaped witness, swore that he bought intoxicating liquor from appellant the latter part of April, and he was present when Sealey, while with Pryor, bought whisky from appellant on April 25th. So that the -testimony of the state did not depend upon the testimony of the “amateur detective” or “a character similar.” Neither did the detectives, or either of them, induce, nor were they instrumental in having, appellant to commit the crime. What they did was to detect him in the commission of the crime.

The prosecution and conviction was for pursuing the business of selling intoxicating liquor in prohibition territory — bootlegging of the worst type. Judge Ramsey, in Fitch v. State, 58 Tex. Cr. R. 390, 127 S. W. 1040, designated accurately, so far as it goes, a bootlegger of this character, thus:

“He was an unfair competitor of the man engaged in the sale of liquor under the restraints and safeguards of law. He was doing business in defiance of law. The youth received no protection at his hands as the law provides in case of the saloon keeper. I-Ie gave no bond to keep an orderly house. He might, as he did, ply his business in all hours of the day (and of the night). His place became the refuge for the depraved, a breeding ground of crime, a plague spot, the refuge and shelter of indiscriminate outlawry, and in every way worse and more destructive than the ‘earthquake’s shock or the ocean’s storm.’ It was this man, as it was a man of like mold in the blind-tiger case, that the law sought to reach. It sought not so much to punish him for the sale as to prevent the sale, break up his place of business, and drive him out of business. It sought not so much to punish him, as to protect society by the imposition of the felony punishment for his continued existence.”

Of the two characters, this one just designated by Judge Ramsey, or the “amateur detective,” it seems to me the latter would be infinitely preferable to the former.

I do not concur in, but express my dissent from, that portion of Judge GAINES’ opinion wherein he held in effect that, because of appellant’s admission that the bottles which the state’s witnesses claimed he had sold to them contained whisky, it was reversible error to permit the state to introduce in evidence these bottles of whisky before the jury. The law on this subject is, as laid down by Mr. Wharton in 1 Wharton’s Grim. Ev. § 24c, as follows:

“It is error to exclude relevant evidence tending to prove or disprove the issues, although the facts are admitted. Notwithstanding the admission, the prosecution has a right to prove the charge by competent evidence in support of it. Facts, when admitted, frequently lose their probative force, and are frequently admitted for this reason alone. Through loose admissions as to such facts, both judge and jury are apt to be confused as to what is and what is not admitted, and are consequently often misled.”

Article 1 of our O. O. P. expressly declares that the object of the Code was intended to embrace rules applicable to the prevention and prosecution of offenses against the laws of the state, and that it seeks, among other things:

“(1) To adopt measures for preventing the commission of crime. (2) To exclude the offender from all hope of escape. * * * (4) To bring to the investigation of each offense on the trial” of the case ‘‘evidence' tending to produce conviction or acquittal.”

And thereby commands the courts to permit the introduction of all legitimate evidence that would convict or tend to have this effect. The very reason appellant had for trying to prevent the introduction of these bottles of whisky which he had sold to these respective witnesses was to escape conviction and punishment for his crime, because the introduction of this testimony did “bring to the investigation” of this offense evidence tending to produce his conviction.

Upon the whole, it occurs to me that this ease should not have been reversed, but affirmed.

DAVIDSON, P. J.

I concur in the reversal, but am of opinion there is error in holding that the indictment was legally found. There seems to be no question as to the facts bearing upon this matter. The court adjourned by the terms of the statute on the 21st day of April. The bill of indictment was returned on the 25th day of April. The court makes this statement in the bill of exceptions:

“The court overrules the defendant’s motion to quash, believing that the law is enunciated in the case of Mizell v. .State, as reported in [59 Tex. Cr. R. 226] 128 S. W. on pages 125 to 128, inc., and, upon the issue of the court’s authority to extend the term, the court states as a fact that on the 21st day of April, A. D. 1917, being the seventh week of the March-April term of this court, the grand jury being then in session and having come into open court and stated to the court that they had not finished the business in hand and could not do so that day and requested the court to extend the term of the court to another week in order that they might thereby be enabled to finish the matters then under investigation, the court granting said request by an order duly entered upon the minutes of the district court, in vol. S, page 102, by authority vested in the court by Senate Bill No. 375, described in chapter 139 of the general laws of the state of Texas of the Acts of the 34th Legislature, * ⅜ ⅜ same being as follows: ‘The terms of the district court in the Sixty-Sixth judicial district of Texas, comprising the county of Hill, shall he holden in said county of Hill, as follows: Beginning on the first Mondays in January, March, May, July, September and November of each year. Each term of said court may continue in session for a period of seven weeks, or until the business is disposed of, save and except the term beginning annually on the first Monday in July may continue in session for the period of five weeks, or until the disposal of the business.’ ”

The act of the Legislature referred to is not fully quoted by the judge in his qualifications. Section 1 of the act is copied by the trial judge. Section 2, however, was not, and reads as follows:

“The near approach of the end of the session and the inconvenience resulting from unequal terms of court in said district, creates an emergency and an imperative public necessity requiring the constitutional rule which requires that bills be read on three several days be suspended, and that this act shall take effect and be in force) from and after its passage, and it is so enacted.”

It will be observed from reading this act of the Legislature that the question of the extension of the term of court under article 1726 of the Revised Oivil Statutes has no application. This is conceded by the majority opinion. The evidence and the bill excludes the idea that there was a pending trial before the court at the time the order was entered. The only reason for the extension was that the grand jury requested it, that they might be enabled to dispose of some matters they had under investigation. Massachusetts has a similar statute to article 1726, supra, which provides that:

“Whenever any criminal case shall be on trial at the end of any term, such term may be continued until such case is finished.”

The Supreme Court of that state held that it applied only to cases actually on trial at the end of a term, and not to a case which, at some previous time during the term, had been begun and suspended, and not actually in progress of trial at the end of the term. That court said:

“Whenever any criminal case shall be on trial at the end of any term, such term may be continued until such case is finished, and the jurors sitting in such case may be required by the presiding justice to serve until the same is concluded. We are of opinion that the words ‘on trial’ in this statute are to be taken in their literal meaning, and that the case must be actually on trial before the court and jury at the end of the term. That is, if in any 'stage of the proceedings of a trial actually in progress at the. time, between the impaneling of the jury and the rendition of a verdict, the end of the term is reached, and the trial cannot be concluded in the ordinary course of business during the term as established by law, in such case an adjournment may be had. The statute does not apply to cases in which at some previous time during the term trials have been begun, and suspended for other reasons, and which at the close 'of the term are not actually in. progress of trial before the jury.” Commonwealth v. MacLellan, 121 Mass. 31.

Wbat was said by the Supreme Court of Massachusetts is applicable here to article 1726, supra. There are other statutes with reference to the continuation of terms of court, and other means of holding court besides regular terms. The trial courts may call such terms for the disposition of business when deemed necessary. Those have no application here. This was not an attempt to call a special term of the court, but is only an •extension call. There are statutory provisions with reference to the continuance of courts, to wit, statutes creating courts and fixing the terms thereof providing that such courts may tinue a certain length of time “and” until the business is finished. That is an amplification and not a restriction. Under such statutes, the term to which such amplification relates may continue without adjourning or order of the court and until the business before the court is disposed of. That rule does not here apply. It will he noticed that by the terms of the present statute the court is limited to seven weeks, “or” until the disposition of the business. That is evidently a limitation upon the power of the court to extend the term. Its purpose was to authorize the court to hold seven weeks if necessary, and, if not, then the court should not continue the seven weeks. This was not intended to grant power of extension, but was a limitation upon the power of extension. If under the statute under consideration the business has been disposed of before the end of¡ the seven weeks, it would be adjourned, and it would he the duty of the judge as soon as the business was disposed of, although the seven weeks had not been economized, to adjourn it. There are obvious reasons why this construction should be placed upon it. One of these is stated in the statute itself, to wit, to avoid “the inconvenience resulting from unequal terms of court in said district.” There is another reason underlying this limitation; that is, to avoid the expense incident to holding court, the inconvenience to litigants and jurors, court costs, and expenses incident to holding court. So it would seem to be the correct conclusion that the district court in Hill county, which adjourned by law on the 21st day of April, was not permitted to last or continue longer than that date. The legislative intent was that the court should continue seven weeks “if necessary,” and if not necessary it was to terminate at or before the end of the seven weeks. It-could not continue beyond that date. There is nothing to indicate an “extension.” The word “or” carries with it the idea that such was the legislative purpose, and this construction is correct. The word “or” is disjunctive and implies the alternative. The statute being in the alternative, it could not last longer than the stipulated seven weeks. “Or” sure means “unless.”

Applying this rule to the statute under discussion, it will be found, by comparing it with other statutes already mentioned, that, where the word “and” is used in one class and “or” in the other, it shows an intentional purpose on the part of the Legislature to amplify the length of terms in one, and to limit and restrict duration in the other. And the reason given in the statute itself fixing the term in Hill county shows that it was the purpose of the legislative mind to place a limitation on the length of such terms as specified in the act. The reason is stated in the bill itself and carries its purpose. If the term could continue till the business was disposed of, the order of extension was not authorized. The idea or “extension” or even legal prolongation is excluded. The trial judge recognized this as correct and held it did not continue until the business was disposed of by entering the “extension” order. It was only by such order of extension that the jury returned the indictment. The extension was unauthorized. The term closed April 21st. The indictment was returned on the 25th of the month, a date when there was no legal or authorized term- of court.

I am of the opinion that tire order of the court extending the time, under the facts set out in the bill of exceptions as qualified by the judge, shows clearly that the extension of the term from the 21st of April beyond the end of the seven weeks was void. The court had no authority to extend the term, and that the term could not be lengthened by operation of law until the business was disposed of. When the night of the 21st of April came at 12 o’clock, the seven weeks’ term ended, and the court by law terminated.

I respectfully dissent, and believe the judgment should be reversed and the prosecution dismissed for want of a legal indictment.
      (gc^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      @=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes