author: PRENIDERiGAST, J.

text:
    LAY et al. v. STATE.
    (No. 4614.)
    (Court of Criminal Appeals of Texas.
    Oct. 31, 1917.
    On Motion for Rehearing, Nov. 21, 1917.)
    1. Criminal Law <§=>1095 — Bills oe Exceptions — Delay in Filing — Striking Out.
    . Bills of exceptions filed too late will be stricken out on motion.
    2. Robbery <§=>24(3) — Evidence — Weight
    and Sufficiency.
    On a trial for robbery., evidence to identify defendants as the robbers held sufficient to sustain a conviction.
    On Motion for Rehearing.
    ■3. Indictment and Information <§=>125(39)
    —Duplicity—Indictment for Robbery.
    Hnder the statute providing that if any person, by assault or violence, or by putting in fear of life or bodily injury, shall fraudulently take any property from the person or possession of another with intent to appropriate it, he shall be imprisoned for life or for not less than five years, and when a firearm or other deadly weapon is used or exhibited, the punishment shall be by death or by imprisonment for not less than five years, an indictment alleging that defendants made an assault upon a person named and by assault and violence, and by putting him in fear of life and bodily injury, and by using and "exhibiting a pistol, fraudulently took from him certain property, was not duplicitous, since the use or exhibition of a firearm or deadly weapon in the commission of robbery is but a circumstance of aggravation and not a separate offense.
    Appeal from District Court, El Paso County; W. D. 1-Iowe, Judge.
    J. H. Day and Palmer Jones were convicted of robbery, and they appeal.
    Affirmed.
    John T. Hill, of El Paso, for appellants. E. B. Henrieks, Asst. Atty. Gen., for the State.
   PRENIDERiGAST, J.

The grand jury of El Paso county indicted appellants and one Racobs jointly, charging that on February 21, 1917, in said county they robbed C. Stull by using and exhibiting a firearm (pistol). Racobs was not arrested or tried. Appellants were tried together. They were each found guilty by a separate verdict and the punishment of each was assessed at 5 years confinement, the lowest punishment prescribed by law.

All the bills of exceptions herein were filed too late to be considered. The Assistant Attorney General’s motion to strike them out and not consider them on that account must be sustained.

The' only question raised which can be considered is the sufficiency of the testimony to justify the verdict.

Shortly after midnight of the night of February 20th, about 1:00 a. m., A. L. Gentry, as motorman, and O; Stull, as conductor, were running into El Paso, from the end of the line where they ran, a street ear. When they approached one of the railroads to cross it they stopped the car and conductor Stull got off the car and walked ahead to the railroad crossing for the purpose of flagging. Mr. Gentry testified that as Mr. Stull got off the car for said purpose two men in disguise came up and covered him with a pistol and told him to throw up his hands, which he did. The one with the pistol told the other man to go through him, which he did. Mr. Stull swore that they got a black folding purse off of him with three $10 bills and six $1 bills, all paper money of the United States. After they thus robbed Stull, for the purpose of robbing the ear, too, they ordered him to get on the car, which he did, on the front end, the man with the pistol following on the car, and asi he got on he turned his head slightly and thereupon Mr. Gentry grabbed the pistol and they had quite a tussle for it. In the tussle the pistol fired and Mr. Gentry’s little finger was shot. During the whole struggle for the pistol the party who had it kept hollering, “Soak him.” That the man finally succeeded in wrenching the pistol from Mr. Gentry and ran up the railroad. These men were unknown to Gentry and Stull. Gentry described the one who had the pistol stating that he had on an army sweater and civilian trousers. The other had a checkered rag over his face, both being thus masked. Gentry did not notice the attire of the one who did not have the gun sufficiently to describe it. Gentry further described the man with the gun as weighing 180 or 185 pounds and about six feet tall. The testimony of Stull and Gentry was about the same. Stull said that he could not tell which one of the men kept saying, “Soak him,” while the man who had the gun was struggling with Gentry. Both these witnesses swore that the man who had the gun had on a cap.

Appellants were soldiers located at Fort Bliss, at El Paso. James P. Harden, another soldier there, testified that at the time of said robbery and before he slept in the same tent with the appellants and others; that he had gone to bed about 10:20 that night; that appellants came in the tent about 15 minutes later; that they built a fire in the stove and turned on the electric light for a minute or two and sat down on their bunks; that while they talked in a low tone he was awake and heard their conversation, He swore:

“Lay said he would not go to hold up the car unless Racobs went. Racobs was a private in F Company. Racobs had a nickname, ‘Breezy.’ Lay said he would not 'go; he called him ‘Breezy’; and said that he would not go unless ‘Breezy’ went. Jones said he would be up in a
few minutes, and in a minute of two Racobs came in and asked if they had any grow They told him ‘No,’ that they could not get one; and he said he thought he could get one from the boys — he didn’t call any names — he just said ‘the boys.i He was gone for a little bit — for about five minutes — and then he came back and said he had gotten them all right. They had discussed getting a pistol from Private Smith, of the Provost Guard, and they said, ‘No’; that they had asked him for it a day or two before and he would not let them have it. Jones said that Smith said, ‘The damn son „of a bitch would give it away if he did or else kill some one with it.’ After this discussion about the pistol and after Racobs had come back, they talked over their plans. Jones’ plan was to get on the street car and throw their pistols in the men’s faces and one of them to go through their pockets. They said they would get on the street car over at the railroad track; at the street car’s first railroad crossing. And Racobs spoke up and said: ‘I believe Lay’s plan is the best — to get the conductor when he gets off to flag the car. Two of us will get him and the other one will go behind the car and see if any one is coming.’ That is the plan they seemed to adppt. They said something about going to the rear and then they all went out. * * * They left there then. These boys first.came in about 10:45. It was near 12 o’clock when ■ they left the tent. There had been no interruptions, except Racobs’ coming, during that period of conversation. They left the tent about 12 o’clock. I saw them next some time between 1 and 2; it was nearer to 2 o’clock than it was to 1. It was about an hour and a half later. Jones and Lay came back in the tent. Racobs came back in after them. After they came back.into the tent, Jones and Lay came into the tent. One of them — I don’t know which one — reached up and turned on the light. Some one came walking down the company street and one of them said, ‘Sh’ and snapped off the light. Jones said: ‘Go out and see who it is.’ In our tent we have two lights. We have a drop cord that runs from the center of the tent and Lay kept it hanging over his bunk, and after Jones went out he turned that one on — it hangs in the corner of the tent, over his bunk. Then he went over to the stove and took the lid off the stove and then he pulled out a black pocketbook and took out a handful of bills. Then he looked through the pocketbook. * * * I could see the pocketbook all the while from the light that was over in the corner and the light from the bed of coals, and he dropped the pocketbook down in the coals. Then he went over to his light and went through the mqney. Then he cut off the light and came back to the stove. In just about a minute, Jones came back in the tent and Racobs came with him and said, ‘How much did we get?’ Lay said, ‘About $36. Then they started to count the money and they said, ‘It will be easy to divide these three $10 bills;’ and each one took a $10 bill apiece. Racobs said he put the guns back and the boys didn’t know they got them, but he said, ‘We better give these hoy a $1 apiece to keep their,mouths shut; you fellows give me $1 apiece.’ They sat down and Racobs said: ‘Did- you see me knock that fellow out of the car?’ and he says, ‘He would have given me a tough fight if I hadn’t shot when I did, and it ain’t my fault that I didn’t kill him.’ As to any further discussion as to what went'on there, Ra-cobs said, ‘Xou kept hollering, “Hit him in the head.” Why didn’t you come to my rescue; didn’t you see I had my hands full?’ After they came back and divided their money, they sat around there for about five minutes. They didn’t have much more to say. They talked pretty low and that is all I could catch. * * * Jones and Lay went to bed, and Racobs went out; he belonged in another company — Company F.”

He further swore:

“As to the kinds of hats they wore that night, Lay was bareheaded when he came back. He had on a small citizen’s hat when he went out; he had on a small black hat. I could not swear positively whether I would know it if I saw it again. That is the hat (indicating hat handed to witness by counsel for defendant). It belongs to Knight. That looks just like the hat. As to how I know it was Knight’s, Knight bought it here in town from Berg. Let me see it. (Looks inside hatband.) This is the hat; it was bought from Sol. I. Berg. Lay was wearing that when he went out, and he came back bare-headed.”

Among other things, Harden, on cross-examination, swore:

“As to my understanding before that that there was a plan to rob some one, Law came to me and asked me if I wanted to go in on a ‘keen’ deal. He didn’t say what kind of deal it was. Some one walked around where we were and no more was said then. The next day I was hanging out some laundry and Jones came along on his way to the rear — to the toilet; he was going in that direction — and he stopped and asked me if I wanted to go in on a ‘keen’ deal with them, and I asked him what it was, and he said it was what Lay had been talking to me about, and I told him that Lay never told me what the deal was, and then he told me it was to hold up a street car. I told him I would not go in on anything like that with him”

—and. also:

“Lay had on this hat. Jones had on a cap. Jones had on a sweater. I could not tell the color of the cap because when they were sitting on the bunk they had the light cut off. I know how Lay was dressed. He had on a brown striped suit. I got a view of that when he was taking out the pocketbook. He had on a brown suit of clothes with small stripes in it. Jones had on a brown sweater and a cap. He had on civilian breeches. A brown looking sweater. As to where that sweater is now, I don’t know anything about that sweater. He came back and went to bed. As to having seen that sweater since, he has a sweater — an army sweater— and it could have been it.”

And lie further swore:

“The conversation that I detailed that occurred between Jones, Lay, and Racobs, as related by them at the street car; all that I heard them state — Racobs asked Jones why didn’t he come to his rescue, or words to that effect. He said, ‘You kept hollering, “Knock him in the head,” and, “Soak him in the head.” Why didn’t you come and help me. I shot that sou of a bitch and it ain’t my fault that I didn’t kill him.’ I can’t remember word for word every word that they used, but those are the effects.”

Joseph R. Mann was another one of the soldiers who slept in the same tent with appellants, Harden, and some of the others. He was asleep a good deal hut he corroborated Harden in that he swore that Lay came in the tent that night after midnight, had a pocketbook described by Harden, took some bills out of it, then pitched the pocketbook in the stove and burned it up; that he went back to sleep and did not know anything else about the conversation between the parties detailed by Harden.

D. F. Powell, another soldier who slept in the same tent with appellants and the others, testified that he slept in that tent himself that night 'and was sick and did not sleep much; that when he went to bed Jones and Lay were not in the tent; they came after that; that he heard part of a conversation between them; that they talked very low; that they then went out and came hack in the tent after 12 o’clock and he heard one of them say, '“I shot that damn son of a hitch;” and another one — he could not tell which one — said, “There is a $10 hill for each of us.” That he did not know Racobs personally but had seen him; that there were .three together in the tent when he heard this; two came in and then a third man, hut he didn’t pay any attention as to who he was; that he knew Jones and Lay but did nbt know the other. He swore that Lay opened a pocketbook, and he saw him take out some hill money, but he could not swear what it was. Then he threw the pock* etbook into the stove. The best he could tell, they gave each one a $10 bill, and he swore:

“And the next morning when I got up Jones had a $10 bill, and I asked him where he got that, and I said, ‘Where did you get it?’ and he said, T don’t know whether that is any of your damn business,’ and I said, T heard some of your talk about holding up a street car;’ and then he said, ‘Do me a favor;’ and I said, ‘Only what is it;’ and he said, ‘If the newspaper comes in, you destroy it;’ and I refused to do it. * * * ”

On cross-examination, he swore:

“When those boys came in there, they turned on the light. When they put the pocketbook in the stove, the light was not on, but there was a light from the stove. They turned the light on and off real quick. They took the top off the stove — the lid off the stove — and threw the pocketbook in and put the lid back on; they turned the light off and on. As to it being dark then, well, they turned the light on and off. They turned the light on and took the money out of the pocketbook and they said, ‘Here’s $10 for each of us;’ and then they turned the light off again and put the pocketbook in the stove.”

Albert Smith, another soldier, swore that on Saturday evening before this robbery occurred, about the Wednesday following:

“I did have a conversation with one of these defendants with reference to a pistol, on the Saturday night before this happened. Lay came to me and tried to borrow my pistol, and said he was going to hold up the last street car coming to town. * * * He told me they were going to hold. up the last car. I told him he could not get it. * * * ”

J. B. Kilpatrick, a deputy sheriff who was called out to the scene of the robbery soon after it occurred, testified that they searched all around there and could not find the robbers, and in following up the railroad track among other things, he found a hat about 20 feet from the street car tracks Which was identified by some of the other witnesses as having been worn that night by Lay.

Each of the appellants testified. They denied that they had anything to do with the robbery, and swore they were elsewhere that night at the time of the robbery. They each denied all the incriminatory evidence against them. They had some witnesses to testify to their good reputation. Their testimony • and that in their behalf would have been sufficient, if believed by the jury, to authorize the jury to acquit them. Evidently the jury did not believe them. Of course, all this was for the jury exclusively.

We have not given all the testimony in full, but have given only some of it tending to show, as it does, the identity of the defendants, and to establish that they, together with Racobs, were the robbers. We cannot hold that the testimony was insufficient to ■ sustain their conviction.

Hence the judgment will be affirmed.

On Motion for Rehearing.

Appellants made no motion in the lower court to quash the indictment on any ground, and they made no motion in arrest of judgment because of any claimed defect in the indictment; but they now claim that, as the indictment charged robbery by assault and by the use of a firearm in one count, it is therefore duplicitous and fatally defective, and that this court should pass upon its validity.

The statute prescribing the offense of robbery is as follows:

“If any person by assault or violence or by putting in fear of life or bodily injury shall .fraudulently take from the person or possession of another any property with intent to appropriate the same to his own use, he shall be punished by confinement in the penitentiary for life, or for a term of not less than five years; and when a firearm or other deadly weapon is used or exhibited in the commission of the offense, the punishment shall be death or by confinement in the penitentiary for any term not less than five years.”

In addition to the necessary allegations in an indictment, unnecessary to recite, this indictment alleged that on or about February 21, 1917, in Ei Paso county, Tex., Walter A. Racobs, Palmer Jones, and J. H. Lay—

“did then and there unlawfully and willfully make an assault upon the person of O. Stull, and then and there by said assault and by violence to the said 0. Stull and by putting the said O. Stull in fear of life and bodily injury, and then and there by using and exhibiting a firearm, to wit, a pistol, did then and there fraudulently take from the person and possession and without the consent and against the will of the said O. Stull $30 in money; current money of the United States of America, of the value of $30; the said property then and there being the corporeal personal property of the said O. Stull, with the fraudulent intent then and there of them, the said Walter A. Racobs, Palmer Jones, and J. H. Lay, to deprive said O. Stull of the value of the same, and to appropriate the same to the use and benefit of them, the said Walter A. Racobs, Palmer Jones, and J. H. Lay.”

This indictment is in the farm laid down by Judge White in section 1465 of his Ann. P. C.; and is also in accordance with Mr. Branch’s form in section 2380 of his Ann. P. O. O.

Mr. Branch, in his .2 Ann. P. C., § 2382, correctly lays down the law as follows:

“An indictment for robbery is not bad for duplicity because in the same count with the allegations of ordinary robbery it is alleged that a firearm was used in the commission of the offense. The use of a fir.earm or of a deadly weapon is but a circumstance of aggravation, and must be alleged in order to authorize the infliction of the more severe penalty. Robbery by firearms is not a separate offense, but the use or exhibition of a firearm or deadly weapon in the commission of robbery, when alleged and proven, authorizes the infliction of a more severe penalty than when an ordinary robbery is alleged. Beaumont v. State, 1 Tex. Crim. App. 536 [28 Am. Rep. 424]; Green v. State, 66 Tex. Cr. R. 452, 147 S. W. 593 (overruling Murdock v. State, 52 Tex. Cr. R. 263, 106 S. W. 374) ; Robinson v. State, 67 Tex. Cr. R. 79, 149 S. W. 186; Bell v. State, 77 Tex. Cr. R. 146, 177 S. W. 966.”

See, also, Collins v. State, 77 Tex. Cr. R. 157, 178 S. W. 345.

Each of these authorities cited by Mr. Branch are exactly in point, and correctly held that the indictment herein was valid and that appellants’ objections, thereto are not good.

In the Green Case, supra, this court held:

“In our opinion, robbery under this statute may be committed in eitlier one, or any two or three, or all four, of the following ways: First, ‘by assault’; second, ‘by violence’; third, ‘by putting in fear of life’; fourth, ‘by putting in fear of bodily injury.’ If the offense is committed in either ox- all of these ways, and not by the use or exhibition of a firearm or other deadly weapon, the penalty is confinement in the penitentiary for life, or any term not less than five years; but, ' under whichever or all of these ways the offense is committed, if committed ‘when a firearm or other deadly weapon is used or exhibited,’ and the pleader so alleges and proves, the punishment is' by death or by confinement in the penitentiary for any term not less than five years. In charging robbery it is absolutely essential that some one or the other or all of the manners in which it may be committed — that is, by assault or by violence, or by putting in fear of life, or by putting in fear of bodily injury — shall be alleged, and if it is sought to inflict the greater penalty for the offense, then, in addition to the above necessary allegations in the indictment, the pleader must further allege that, whichever way or all the ways above charged have been used, the fact that ‘a firearm or other deadly weapon was used or exhibited in the commission of the offense.’ An indictment merely alleging that robbery had been committed by the use or exhibition of a firearm or other deadly weapon, without also alleging that it was committed in one or the other.or all of the ways of ‘by assault, or violence, or by putting in feq.r of life or bodily injury,’ would charge no offense at all.”

Appellants also contend that this court erred in striking out their hills of exceptions and not considering them, claiming that they used due diligence to procure and file them in time, and that their failure to do so was because of no fault of theirs. We have carefully read their affidavits and that of their attorney undertaking to excuse themselves for not filing the bills in time. They do not by any means show a sufficient excuse for not filing the bills in time, as has many times and uniformly been held by this court. Turner v. State, 22 Tex. App. 42, 2 S. W. 619; Henderson v. State, 20 Tex. App. 304; Bryant v. State, 35 Tex. Cr. R. 395, 33 S. W. 978, 36 S. W. 79; Bell v. State, 31 Tex. Cr. R. 521, 21 S. W. 259; Riojas v. State, 36 Tex. Cr. R. 182, 36 S. W. 268; George v. State, 25 Tex. App. 229, 8 S. W. 25; Monk v. State, 38 Tex. Cr. R. 602, 44 S. W. 158; Dennis v. State, 41 Tex. Cr. R. 160, 53 S. W. 1ll; Adams v. State, 60 S. W. 255; Shaffer v. State, 65 S. W. 1072; Ashman v. State, 74 S. W. 317; Murphy v. State, 45 S. W. 719; Bracy v. State, 49 S. W. 598; Farris v. State, 26 Tex. App. 107, 9 S. W. 487; Aistrop v. State, 31 Tex. Cr. R. 467, 20 S. W. 989; Jones v. State, 74 Tex. Cr. R. 350, 163 S. W. 75; Gowan v. State, 73 Tex. Cr. R. 227, 164 S. W. 6; Laws v. State, 73 Tex. Cr. R. 287, 164 S. W. 1015. But even if the bills could be considered they would iiresent no reversible error.

In their motion appellants do not now contend that the evidence was insufficient to sustain their conviction. It is substantially recited in the original opinion.

The motion is overruled.
      <S=>For other oases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: DAVIDSON, P. J.

license: Public Domain

text:
    BOOZER v. STATE.
    (No. 4598.)
    (Court of Criminal Appeals of Texas.
    Oct. 31, 1917.)
    1. Criminal Law <®=»476 — Expert Testimony —Cause of Wound.
    On the trial of a woman for murdering her husband, where the state introduced an axe owned by deceased with which it claimed the crime was committed, and contended that the use of the axe indicated the commission of the crime by defendant rather than a third person who would have likely brought some instrument with him, and there was a dispute as to whether blood was found on the axe, a qualified physician who examined the wound and the axe should have been permitted to tesitfy that the axe could not have inflicted the wound because by reason of its size, shape, and its rough edges it would have inflicted a wound having a different appearance.
    2. Criminal Law @=»857(3) — Deliberations of Jury — Consideration of Failure of Accused to Testify.
    For one of the jurors on the trial of a woman for murdering her husband to remark after a ballot had been taken resulting in an unanimous vote of guilty, but before the punishment had been agreed upon, in the hearing of several other jurors, that if he was charged with killing his wife he would take the stand in his own defense, was such an allusion to and comment on defendant’s failure to testify as required a reversal, as it served to emphasize the manner in which those who made the statement considered her failure to testify.
    Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.
    Mrs. Sallie Boozer was convicted of murder, and she appeals.
    Reversed and remanded.
    Beeman Strong and O. O. Watson, both of Nacogdoches, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of murder; her punishment being assessed at 6 years’ confinement in the penitentiary.

This is a ease purely of circumstantial - evidence. Briefly stated, the facts disclose that deceased 'and appellant, his wife, lived in their home with two children, a boy and girl about grown. Within about 300 yards of them lived a family named Forsythe. There was' a play at a little church or schoolhouse in the neighborhood a mile or two away on the night of the death of deceased, and the two children of deceased and appellant were attending that play. This would leave deceased and appellant together at home. Somewhere about 10 o’clock-screaming was heard at the home of deceased. Young Buford Forsythe and his mother went to the home of appellant, found her at the barn with a rope around her neck, tied to a plank above her head, presenting an appearance of hanging. An explanation of conditions was given by her to these parties, who testified on the trial. The statement, substantially, is that while she and her husband were in a room in their residence some man entered, placed a pistol in front of her, and took her away down to the barn and hung her; that she lost consciousness between the time she left the house and the time she began screaming. She apparently did not know that her husband was killed. These witnesses carried appellant to the Forsythe residence and placed her on a bed. Different neighbors were called and officers from the town of Nacogdoches four miles away, and Mr. Forsythe and another witness took a lamp, went to the residence of deceased, and found him on a pallet on the floor dead and very bloody about the head. It seems they made no examination, but later other parties came, and upon examination found he had been struck a very heavy blow on the side of the head, crushing the skull. This wound was described to be about an inch and a half or two inches long, and something like an inch or an inch and a quarter in width. The cutting into the flesh presented a smooth-cut wound. The evidencfe showed that this blow killed him, and being delivered with great force, death resulted- practically instantaneously. There was an axe found near the woodpile in a stump which belonged to the family. This old stump seemed to be the usual receptacle for this axe when not in use. When young Buford Forsythe and his mother were passing the house where this tragedy occurred en route to the barn, young For-sythe caught his mother by the arm and jerked her to one side and into the road, remarking that he heard some one in the house. This he testifies, as does his mother, and he further testifies he did hear, a noise in the house as if some one was walking or turning over a chair. These people had lived there something like 15 or 20 years. There was nothing noticeable about their conduct one way or the other. They were ordinarily good people, and, if there were any differences between husband and wife they were evidently trivial.. There was no motive shown on the part of the wife to kill her husband, and the only motive the writer gathers from this record for any one to kill him was the fact that it was understood he kept money about the premises. Appellant was a small woman, and had been sick a great deal, and weighed probably less than 100 pounds. About 6 years prior to the homicide there had been one or more operations performed on her, one for appendicitis, and the other to remove her ovaries. About 6 years prior to the homicide one of her children, a son, had died, and the appellant showed after that she was a changed woman in many respects, and suffered often with what the witnesses called “spells.” The doctor who attended her says they would last from 2 days to 2 weeks. The symptoms were all described, but it is unnecessary to repeat them. She was under treatment of the doctor almost continually for 6 years prior to this homicide ; he testifying that he saw her practically every week. Without going into any further details about the matter, this is a sufficient statement.

A bill of exceptions recites that Dr. Barham was a regular graduated physician of 15 years’ experience, and that he was called for that purpose, and did examine the wounds upon deceased; that he made a thorough and extensive examination, and found only one wound upon the body, which was on the left side of the head in the left temple; that the wound was made with a blunt instrument, breaking the skull in such way that he could determine the size of the instrument, and that the skull was cut smooth around the edges of the indenture, showing that the edges of the instrument inflicting the wound were smooth. He further testified that he saw and carefully examined on the next morning after the homicide in the justice of the peace office at Nacogdoches an axe which was found at the woodpile at the home of deceased on the night of the homicide, which axe was introduced in evidence as - the supposed instrument with which the homicide was committed, and offered testimony also that there was blood on the axe. Dr. Barham further testified that he examined the axe on the morning after the homicide, and some few hours after he had examined the wounds on deceased’s body, for the purpose of determining whether said axe was the instrument used to inflict the wound. He also testified that the axe which was handed to him while he was on the stand, offered in evidence by the state, was the same axe that he examined on the morning after the homicide in the justice of the peace office; and, further, that by reason of his examination of the wound and of the axe he was in position to state whether or not said axe inflicted the wound on deceased’s head, and further testified that as a physician he had a great deal of experience in- the examination of wounds of various kinds and characters and of instruments with which they were inflicted; and after the witness had testified as above set out, appellant then proposed to prove as follows:

“That the axe which was handed to Mm while on the witness stand (and which was the axe offered in evidence by the state upon the trial as the instrument with which the murder was committed, and upon which the state offered evidence to show that there was blood, and being the same axe found at the woodpile of the home of deceased and defendant and examined by said witness Barham in the justice of the peace office on the morning after the homicide) could not have inflicted the wound which he (said witness) examined upon the head of deceased (and being the only wound found by said witness on deceased’s body), for the reason that the poll of said axe was too broad and too long to have made the indenture-which was above seven-eighths of an inch in depth in the skull of deceased, and that the poll of the axe was rough around the edges, and for that reason could not have inflicted the wound found by him on deceased’s head, and for the reason that the edges of said wound were perfectly smooth and could not have been left in said condition by anything other than a smooth instrument around the edges; that from his examination of said wound and his examination of said axe immediately after the homicide and also while on the stand as a witness in this trial, all of which examinations were careful and thorough, and that said axe (which the state offered in evidence as the instrument which inflicted the wound on deceased) could not have inflicted the wound, and that said wound could not have been inflicted by said axe under any circumstances.”

The purpose of introducing this is thus stated, that the state had offered in evidence the axe examined by the witness, Dr. George S. Barhami, in the justice of the peace office a few hours after the homicide, and also examined by said witness upon the trial while on the witness stand, and the state had offered evidence that said axe was found at the woodpile near the scene of the homicide, and that there was blood on same when it was found a few hours after the homicide, and had offered evidence tending to show that said axe belonged to the family of de-. fendant, and the state contended that the said axe was the instrument used to commit the murder, and that defendant, knowing where said axe was kept and the surroundings, was the guilty party, and the state made the contention in the trial that had any other party committed the offense, he would have likely brought some instrument with him with which to commit the offense, and that it was very improbable that any other party than defendant would have used the axe which belonged to the Boozer home, and the state contended that the axe offered by them in evidence was a strong link in the chain of circumstances which the state relied on to convict the defendant, and had said witness, Dr. Barham, who was wholly disinterested, been permitted to testify that he' made a thorough examination of both the wound on deceased and the - axe, and that in his judgment it was a matter of-impossibility for said axe to have inflicted said wound, said testimony would have greatly weakened the state’s case, and would have tended strongly to show that the defendant was innocent.

Various objections were urged to this by the state, which objections were sustained and the testimony excluded. The judge states that this bill is signed with the qualification that the statement of facts is referred to, and further that the witness could give a description of the wounds and axe and let the jury pass on .the matter. We are inclined to the opinion that this testimony was admissible under the circumstances stated. See Betts v. State, 60 Tex. Cr. R. 634, 133 S. W. 251; Waite v. State, 13 Tex. App. 169; Banks v. State, 13 Tex. App. 182; Kirk v. State, 37 S. W. 440. It seems to be practically the well-settled rule that experts may be permitted to testify that certain instruments may or could have inflicted wounds when those wounds were the subject of investigation. The wound may have been inflicted by this axe, and as the state was seeking to prove this and relying upon it, the reverse of the proposition ought to be that defendant could prove that it was not and could not have been done by the axe. This was described by the witness as being an ordinary poll .axe, and the wound was described as being much snfeller that the length of the poll of the axe and of smooth appearance. It seems from this testimony also that the poll of this particular axe was ragged and jagged on the edges. We are of opinion that under these circumstances this testimony should have gone to the jury to be weighed by them. The state’s whole case seems to have revolved around and depended upon the fact that deceased was killed by the use of this axe. There was also in this connection a serious contention by the state that there was blood found upon the axe, and by the defendant that the substance seen upon the axe was not blood. We are of opinion that the doctor under this bill of exceptions should have been permitted to testify to these facts.

There is another bill of exceptions reserved to the action of the court overruling certain matters set out in the motion for new trial, ambng others, misconduct of the jury in referring to the failure of appellant to testify during the trial. We- are of opinion that this contention should have been sustained. See Mizell v. State, 197 S. W. 300, and cases cited in that opinion; Walling v. State, 59 Tex. Cr. R. 279, 128 S. W. 624; Fine v. State, 45 Tex. Cr. R. 290, 77 S. W. 806; Buessing v. State, 43 Tex. Cr. R. 85, 63 S. W. 318; Wilson v. State, 39 Tex. Cr. R. 365, 46 S. W. 251; Tate v. State, 38 Tex. Cr. R. 265, 42 S. W. 595.

The facts in this connection show by the Juror Stallings that he was a member of the jury, and that the jury retired about 3:30 o’clock in the evening to consider their verdict. As to whether or not the failure of defendant to testify was referred to he said:

“I never heard it mentioned in connection with the deliberation of the jury, that is, in connection with the verdict; the only time I heard it mentioned was last night, but last night I heard some one make the assertion that if they were being tried for killing their wife they would have taken the stand in their own defense;” that is, if they were charged with or being tried for killing their wife they would take the stand in their defense.

This was at night after their retirement in the evening about 3:30 o’clock before returning the verdict the following morning about 9 or 9:30 o’clock. He says:

“I don’t remember just how many mentioned this — just how many times I heard it — but possibly just the one time, just by the one man, and I don’t know who that was now. I don’t know that I heard but one person say that if they were being tried, charged with killing his wife, he would take the stand in his defense, but probably some one else commented on it.”

He further says that after the jury retired they took what he called a secret ballot, and that resulted in a unanimous vote of guilty. This reference to the failure of defendant to testify occurred after that but before the verdict was reached. It was also mentioned, he says, in this connection, that when the remark was made some one said, “We could not consider that because the court charged us not to do so.” When they took the first ballot as to the penalty 9 men stood for 5 years, and the other 3 men were for above 5 years. He also testified that this did not influence his verdict. One, at least, of the jurors was for 25 years. Grigsby, another juror, testified in reference to their secret ballot of guilt and that they stood 9 to 3, 9 in favor of 5 years, and the others above 5 years. Then he says:

“While I was in the jury room I heard some one make the remark that if they had been charged with killing his wife he believed that he would go on the stand and testify in his own behalf, or something like that. I don’t remember who it was that made this remark; don’t know whether I knew who it was at the time or not, but we didn’t have any discussion about that.”

He says some one spoke up and said, “We must not consider that.” He did not recall who it was made the remark. There was no one else in the jury room except the 12 jurors. Wallace, another juror, testified that:

Some one made the remark that if they were charged with killing their wife he would have gotten on the stand, or that they could not have kept him off of the stand, or something like that; “one of the jurors made that remark, and some one just replied that we could not bring her in that way; that we couldn’t talk on that subject, about her evidence or anything that way; that we couldn’t talk about that.”

These three jurors seemed to have been for a verdict of 5 years. The verdict returned was for 6 years.

Under the cases cited this was. such an allusion to and comment on the failure of the defendant to testify as to require a reversal of this judgment. That it entered into a consideration by the jury could hardly be questioned. These references to the fact that appellant did not testify served to emphasize the manner in which those who made the statement considered her failure to testify. This carries with it the fact that the jurors making such remark had in their mind the idea that appellant was derelict in not taking the stand under the circumstances and testifying, and it evidently made such an impression as caused the use of such language. Only 3 jurors testified; the remaining 9 were present, but were not used. The district attorney wanted the record to show their presence; it does so show, but they were not placed upon the stand. The testimony was not questioned. This constituted the evidence in regard to the matter before the court.

The judgment will be reversed, and the cause remanded.
      other cases see same topic and KEY-NUMBER in all Key-Nnmbered Digests and Indexes


text:
    SMITH v. STATE.
    (No. 4610.)
    (Court of Criminal Appeals of Texas.
    Oct. 17, 1917.
    On Motion for Rehearing, Nov. 14, 1917.)
    1. Indictment and Information ©=132(4)— Election Between Counts.
    The court correctly refused to require the state to elect between a count charging forcible rape, and a count charging rape upon a girl under 15 years of age; it not being necessary to require the state to elect where the indictment 'charges in various counts the same offense so as to meet any possible contingency that might arise under the facts.
    2. Criminal Law ©=1091(4) — Bills of Exceptions — Sufficiency.
    Bills of exception to evidence to present matters for review should show the answer to the questions and the connecting facts.
    3. Criminal Law ©=1091(8) — Bills of Exceptions — Sufficiency.
    A bill reciting that while the county attorney was making his closing argument he used the following language, “Martha Forney, defendant’s witness was within call of the courthouse, and defendant did not have her summoned or used as a witness in the other trial of this case,” to which argument defendant called the court’s attention, and requested it to give a special charge in writing to the effect that they could not consider for any purpose the argument, and urging as an objection that the argument called the attention of the jury to a previous trial, and that no testimony had been introduced showing said witness had not been summoned, etc., was deficient, as the grounds of objection are not statements of fact, but simply grounds of ■objection.
    4. Criminal, Law ©=720(1) — Argument of Counsel.
    As the county attorney brought out testimony on cross-examination of defendant’s witnesses that this was the first time they had testified in the case, the argument had a basis in the facts.
    On Motion for Rehearing.
    .5. Criminal Law ©=1091(3) — Bills of Exception — Sufficiency.
    A bill reciting that while defendant was being cross-examined the state was permitted to ask and prove by him who was keeping house for him, to. which defendant objected because j it sought to get before the jury that' defendant was living with a woman not his wife, was insufficient to show error; there being nothing to indicate what answer, if any, was given.
    6. Criminal Law ©=31142 — Appeal—Objections — Statement of Facts.
    The court on appeal cannot presume that objections in bills of exception are statements of fact.
    7. Criminal Law ©=31110(7) — Omission in Bills of Exception — Reference to Statement of Fact.
    The court on appeal cannot refer to statement of facts to supply omissions of fact in bills of exception.
    8. Criminal Law ©=>1091(4) — Bills of Exception — Sufficiency.
    A bill not stating the time elapsing between prosecutrix’ statement and the time when the rape was committed, but simply urging that it was not admissible as original testimony, not being a part of the res gestte, and not made in the presence of defendant, was insufficient, as it did not exclude the idea that the statement was sufficiently close to bring it within the res gestte rule.
    9. Criminal Law ©=1144(10) — Rulings of Trial Court — Presumption.
    It will be presumed on appeal that the rulings of the trial court are correct, where not shown in some way to be incorrect.
    10. Criminal Law ©=1091(5) — Bill of Exceptions — Sufficiency.
    A bill complaining of exclusion of question should have stated what was the expected answer.
    11. Criminal Law ©=1091(3) — Bill of Exceptions — Sufficiency.
    A bill reciting that the state asked a witness, “What did you do?” and that the court remarked if it was something about an examination, it would be admissible, is too indefinite; it not showing what the matter related to, or how the question came to be asked.
    Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.
    Walker Smith was convicted of rape, and appeals.
    Affirmed.
    Arthur A. .Seale and S. M. Adams, both of Nacogdoches, and J. A. Spears, of Cushing, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of rape, and awarded seven years’ confinement in the penitentiary. This is the second appeal; the first being found reported in 188 S. W. 983.

There are two counts specified in the indictment, one alleging rape committed by force, and the second count charges rape up-. on a girl under 15 years of age. Appellant made application to require the state to elect upon which count it would proceed with the trial. This was refused by the court, and under the authorities we think the action of the court was correct. See volume 1 Branch’s Ann. P. C. § 444. It is not necessary to require the state to elect where the indictment charges in various counts the same offense to meet any possible contingency that might arise under the facts.

There are quite a number of bills of exception, we think, that do not require discussion. They are so indefinite as not to present revisable matters. By way of illustration hill No. 1 recites that the state, over appellant’s objection, was permitted to ask pros-ecutrix the following question: “'Did it hurt you or not?” And defendant objected for the reason that same was leading, which objection the court overruled, and appellant reserved his bill of exceptions. There is no answer given. In order that bills of exception present matters for review, the bill should show the answer and connecting facts that .this court may be able to determine whether there was error or not.

The following bill of exceptions says the court erred in permitting the same witness to be asked the following question: “Did his private parts go into you — penetrate your privates or not?” There is no answer given to this question. Appellant asked this question of the same witness: “Don’t you know that if you had said a word, or had holloed, that some one would have heard you?” This is all the bill shows. No answer is given, and no expected answer. The same may be said about practically all of these bills of exception.

Going down the list we find bill No. 7 recites that while the defendant was on cross-examination by the state he was asked who was keeping house for him. To this defendant objected because it was prejudicial and seeking to get before the jury-that some other negro woman, and not his wife, was living with him. These are but grounds of objection, and do not state the answer or the expected answer. Grounds of objection cannot be held to state facts.

Bill No. 8 recites that the state was permitted to ask and prove by Fannie Durst that Golly Booker, the alleged injured party, came to where she (Fannie 'Durst) was working, and told her that the defendant, Walker Smith, had done something to her, and had intercourse with her, throwing her upon the bed, getting on top of her, etc. The objection was that this was not original testimony, and could not be used against the defendant, that it was not part of the res gestae, not in the presence and hearing of the defendant, and was prejudicial. These are but grounds of objection. The length of time between the supposed act of getting on top of her and having intercourse with her, and the time of the statement, is not shown. It may have been immediately so as to constitute part of the res gestae, but the bill of exceptions is silent upon this question, except as stated in the ground of objection, which does not take the place of the facts.

Another bill recites that while the state’s witness Cloudy was testifying the prosecution was permitted to ask if he saw defendant at Mally Green’s house, and at another house in that vicinity, just before the witness Mally Green, mother of prosecutrix, came over there and said something to- the defendant. Objection was urged to this because it was not part of the res gestee. Just what the error was is not shown by this bill, nor is it shown anything was said between the parties, or what Mally Green said to the defendant, or whether she said anything. Another bill recites the state asked the same witness, Mally Green, “What did you do,” and appellant objected to that; it being contended that appellant was not present. There was no answer given, nor any of the facts showing that anything could have been injurious by reason of asking this question.

Another bill recites that while the county attorney was making his closing argument he used the following language:

“Martha Forney, defendant’s witness, was within call of the courthouse, and the defendant did not have her summoned, or used as a witness in the other trial of this case.”

To which argument defendant called the court’s attention, and requested the court to give a special charge in writing to the effect that they could not consider for any purpose the argument of the county attorney wherein he stated that Martha Forney, defendant’s witness, was within call of the courthouse, and defendant did not have her summoned or used as a witness on the other trial of this case. The objection urged was that the argument called the attention of the jury to a previous trial, and that no testimony had been introduced showing said witness had not been summoned as a witness on the other trial, was outside of the record, and that unsworn statements of counsel for the state before the jury, on material facts adverse to a defendant or his witness which are not put in evidence during the trial, are improper and prejudicial to the rights of a defendant before the jury. We are of opinion that inasmuch as these grounds of objection are not statements of fact, but simply grounds of objection, that the bill is deficient.

On cross-examination of appellant’s witness, Martha Forney, the state brought out testimony, without objection by appellant:

“That this is the first time I have testified in. this case. I lived here when it was tried before, but I never testified then. I do not know how far it ⅛ from my house to the courthouse.”'

This was the reference the county attorney made in his argument. On cross-examination of the witness Cloudy appellant also-brought out evidence relating to the former trial. We are of opinion that the county attorney’s argument had a basis in the facts. Referring to the testimony of the witness: Martha Forney, as found in the statement of facts, it is discovered she lived in the town of Nacogdoches, and but a few steps-from where this rape is said to have occurred, and she narrates some of the testimony that occurred between the parties in which-defendant took part. She further testified! that:

“This is the first time I have testified in this case. I lived here when it was tried before^ but I never' testified then. I don’t know how far it is from my house to the courthouse.”

We are of opinion that there is no error shown by this bill of exceptions.

We are of opinion that the evidence is sufficient to justify the finding of the jury, but deem it unnecessary to state the facts.

The judgment is affirmed.

On Motion for Rehearing.

Appellant, in his motion for rehearing, insists the court was wrong in not considering' his hills of exception on the grounds stated in the original opinion. At the urgent insistence of appellant’s counsel we have again looked over these hills and think we were correct. ■ -

One of the hills about which he complains recites that: “Tffie court permitted the state to ask and prove by the defendant on cross-examination, while he was on the stand, who was keeping house for him.” Appellant objected because it was prejudicial, and served to get before the jury that some other negro woman than his wife was keeping house for him. There is nothing in the hill to indicate that he testified who was keeping house for him, whether it was his wife or some one else. We are unable to tell from this bill what the answer was, if any was given. We might fairly presume from this statement that somebody was keeping house for him. His contention that it was getting before the jury that some other woman than his wife was keeping house for him is purely a ground of objection. The bill does not so show. The bill must be specific enough to show in some manner and manifest to this court what it took to constitute the supposed erroneous ruling of' the trial court. This court cannot presume that objections are statements of fact.

We are referred to the opinion on former appeal where it is stated that the court should not have permitteu the state to prove that appellant’s wife had been sent to the penitentiary, and that appellant had lived with his wife only three days after being released from the penitentiary. Whether he had treated his wife rightfully or wrongfully is not an issue in this case. That question, however, is not presented on this appeal so far as this bill of exceptions is concerned. On the former appeal that was a legitimate deduction and conclusion by the court from the bill then under . consideration. We cannot refer to the statement of facts in order to supply such omissions in bills of exception. This,, seems to be the rule under practically all the authorities.

The same may be said with reference to bill No. 8. It recites that the state, over appellant’s objection, was permitted to ask and prove by -state’s witness, Fannie Durst, that Golly Booker, the alleged injured party, came to where she (Fannie Durst) was working, and told her that the defendant, Walker Smith, had done something to her, and had intercourse with her, throwing her upon "the bed and getting on top of her. The objections, urged here were that it was not admissible as original testimony, was not a part of the res gestas, and not in the presence and hearing of the defendant. The time elapsing between thei time that the prosecutrix made her statement to Fannie Durst and the time when the' assault to rape was committed is not stated. It may have been immediately or sufficiently close and under such circumstances that brought it within the rule of res gest®. The bill does not exclude this idea, and is silent upon that question. The -objections stated, that it was not a part of the res gestse, does not establish that objection as a fact. In order to determine that matter the time elapsing between the alleged rape and the conversation had between Fannie Durst and the prosecutrix should have been stated. It may have been admissible, but we cannot decide that question because the bill of exceptions is silent upon it. We indulge the presumption that the rulings of the trial court are correct, unless in some way shown to be erroneous.

The same may be said of bill No. 4. By that bill it is shown the following question was asked the prosecutrix:

“Don’t you know that if you had said a word, or had holloed, that some one would have heard you?”

There was no answer given, and no expected answer stated. In the motion for rehearing it is conceded ho answer was given, nor does it state what he expected to prove had witness been permitted to answer. We cannot supply this omission. The bill could have stated what was the expected answer.

Appellant also complains that the court erred in not considering bill No. 10 as being sufficient. It recites the state asked Mally Green the following question: “What did you do?” The appellant objected, and the,,coWt remarked) if it was something about an examination it would be admissible. This is the bill. It is apparent it is too indefinite. It does not show or state what Mally Green did, and the court informed counsel that if it was something that related to' an examination it would be admissible, but the bill does not show what the matter related to, nor how the question came to be asked, what the witness Mally Green did. These arc the questions presented in the motion for rehearing, and because they are insisted upon in the rehearing, we have thought it proper to notice them.

There is no reason shown why the former opinion of this court should be changed; therefore the motion for rehearing is overruled.
      g=For other eases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


text:
    HARKEY v. STATE.
    (No. 4658.)
    (Court of Criminal Appeals of Texas.
    Oct. 31. 1917.)
    Licenses <®=42(3) — Occupation Tax — Penalty for Failure to Pay — Information.
    Under Rev. St. art. 7355, § 36, providing that there shall be collected from each owner or keeper of every kinetoseope and cinematograph or similar machine or instrument used for profit an annual occupation tax of $25, an information charging defendant with the occupation of keeping a kinetoseope and cinematograph, and a similar machine and instrument used for profit, which show the lifelike motion of persons and animals, the said occupation being taxed by law without first obtaining licenses therefor, and the taxes then and there due by him to the state upon said occupation amounting to $50, and the tax then and there due the county from said occupation amounting to $25, the said taxes due the county having been theretofore duly levied by the commissioners’ court of said county, was insufficient, there being no attempt to charge as required by the statute the annual tax, or an allegation to show that more than one annual tax was due.
    Appeal from Rains County Court; W. E. Rabb, Judge.
    L. H. Harkey was convicted of the occupation of keeping a kinetoseope and cinemato-graph without first obtaining a license therefor, and appeals.
    Reversed and remanded.
    B. A. Carter and W. E. Shipp, both of Emory, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

The complaint and information charge appellant with the occupation of keeping a kinetoseope and cinemato-graph, and a similar machine and instrument used for profit, which show the lifelike motions of persons and animals, the said occupation being taxed by law, without first obtaining license therefor, and the taxes then and there due by him to the state upon said occupation amounted to $50, and the taxes then and there due the county upon said oe-, cupation amounted to $25, the said taxes due the county having been theretofore duly levied by the commissioners’ court of said county. The information follows the complaint. This is alleged in the information, and the complaint as well, as having occurred on the 2d day of September, 1916. Article 7355, § 36, of the Revised Civil Statutes levies on the, alleged business an annual tax of $25. The commissioners’ court was authorized to levy half the amount of the annual tax. In order that the commissioners’ court may collect they must, at the time stated in the statute, levy each year occupation taxes equal to one-half of that levied by the state, which is $12.50 in this particular instance. There is no evidence that the commissioners’ court of Rains county ever provided for the collection of such occupation tax. The statute above cited requires the payment of an annual tax of $25 each year. The statute limits the amount to be paid, and , requires that it shall be an annual tax. This is, therefore, a limitation placed by the statute itself as to the manner of levying the tax, and the length of time authorized by such levy for following the occupation.

It will be noticed the information charges that on the 2d day of September, 1916, appellant was following such occupation without having paid the tax, which was alleged to be $50. The statute, as before stated, levies $25, not $50 as charged. There was no attempt in the information to charge as required by the statute the annual tax; nor does the information undertake to charge that he has been running for more than one year, requiring more than $25. Where the statute provides the manner and means, the pleadings must follow these definitions and requirements. The punishment provided in the Penal Code for a violation of the statute would be not less than the amount of the tax, nor more than double that amount. The information charges it was $50. The amount of the tax is not that set out in the statute, but double that amount. The punishment awarded by the jury was $75. Whether this included the amount of taxes levied by the commissioners’ court would hardly be surmised on account of the fact that no evidence was introduced showing the county had ever levied a tax. The information therefore does not charge a violation of the statute, and if the party had been pursuing the business for more than one year, then suitable allegations should be made to show there was more than one annual tax due. The information therefore, we think, is invalid, and the conviction is wrong. The sheriff, who is also tax collector, testified that appellant paid the tax from the 1st of May, 1916, to the 1st of May, 1917; therefore the year 1916 could not have been included, or ought not to have been included, in the information and complaint.

As the matter is presented, the judgment will be reversed, and the cause remanded.


text:
    FERNANDEZ v. STATE.
    (No. 4671.)
    (Court of Criminal Appeals of Texas.
    Nov. 7, 1917.)
    1. Criminal Law <©==>1166½ (8) — Review — Challen ge for Cause after Exhaustion of. Peremptory Challenges.
    If a cause for challenge is well taken, and defendant, having' exhausted his peremptory challenges, is forced to take the talesman as a juror, he is entitled to reversal; for peremptory challenges are given to be exercised by defendant independent of challenges for cause.
    2. Jury <®=j108 — Cause for Challenge — Statement o-f Juror — Punishment.
    Where a talesman, when tested as to his qualifications to sit as a juror in a prosecution for violating the local option law, stated positively that he would not under any circumstances accord accused the benefit of the suspended sentence law, the statement constituted a cause for challenge.

      3. Criminal Law ©=749 — Plea for Suspended Sentence — Determination by Jury.
    The law accords an accused the right to have a jury pass upon her plea ior suspended sentence when filed in proper time.
    Appeal from District Court, Atascosa County ; E. G. Chambliss, Judge.
    Julia Hernández was convicted of violating the local option law, and she appeals.
    Judgment reversed, and cause remanded.
    E. B. Hendricks, Asst. Átty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted for violating the local option law.

There are various exceptions to the ruling of the court with reference to the admission of testimony. The bills are rather indefinite, and, in view of the disposition of the case, are not discussed. Upon another trial these matters may not occur, and, if so, the bills of exception will be more explicit.

There is a bill of exception reserved which, in substance, shows that, when the jury was called to be impaneled and tested as to their qualifications in this particular case, two of the jurors answered positively that they would not, under any circumstances accord the accused the benefit of the suspended sentence law. These two jurors were challenged for cause. Appellant- exhausted her peremptory challenges, and one of the jurors, over her objection, sat on the jury. The court, on the face of the bill of exception, seems to have been under the impression that at the time these Causes for challenge were offered appellant had her peremptory challenges. This is not an answer to the question. If a cause for challenge is well taken, and the defendant exhausts his peremptory challenges and is forced to take such juror, he is entitled to reversal. Peremptory challenges are given to be exercised by the accused independent of challenges for cause.

We are of opinion that the court was in error, and further that it constituted a cause for' challenge. Appellant properly, and in due time, filed a plea for a suspended sentence. The law accords an accused the right to have a jury pass upon such plea, when filed in proper time. It is a matter of value for an accused to have a suspended sentence awarded if the jury should find against him on the merits of the case and convict. ,

The judgment is reversed, and the cause remanded.
      tenaEor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    McGEE v. STATE.
    (No. 4672.)
    (Court of Criminal Appeals of Texas.
    Nov. 7, 1917.)
    Animals' <®=34 — Health oe Cattle — Dipping-Notice.
    Where defendant was not, in writing, notified to dip his cattle, horses, and mules to eradicate fever ticks until after the filing of the complaint and information, he cannot be convicted on account of failure.
    Appeal from Young County Court; W. P. Stinson, Judge.
    W. C. McGee was convicted for failing to have his cattle dipped as required for eradication of ticks, and he appeals.
    Reversed and remanded.
    See, also, 194 S. W. 951.
    Johnson & Johnson, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted for failing to have his cattle dipped under certain circumstances requiring such dipping for the eradication of ticks.

The complaint and information charges that this occurred on or about the 6th of July, 1916. There was no written notice given him prior to the filing of the complaint and information, and if any written notice has been served upon him at any time, the evidence of it is found in the testimony of Dr. Julian. His testimony is that he never did inspect defendant’s cattle or premises; never was at his premises before June, 1917. “I don’t know whether defendant’s cattle ever had any fever ticks. I gave him a notice to dip his cattle, -horses, and mules on that day, June 8, 1917.” If this is sufficient evidence to show he had a notice, it shows that it was given nearly a year after the complaint and information were filed.

There are other interesting questions in the case, but we deem it unnecessary, in view of this decision, to discuss them.

The judgment will be reversed, and the cause remanded.


author: MORROW, J.

text:
    PERKINS v. STATE.
    (No. 4679.)
    (Court of Criminal Appeals of Texas.
    Nov. 7, 1917.)
    Criminal Law ©=1020 — Appeai>-Jurisdic-tional Amount.
    Under express provision of Code Cr. Proe. 1911, art. 87, appeal to Court of Criminal Appeals will not lie in case appealed from inferior court to the county court, where a fine of less than $100 was there imposed.
    Appeal from Dallas County Court at Law; T. A. Work, Judge.
    Minnie Lee Perkins was convicted, and appeals.
    Appeal dismissed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

This appeal is from a conviction for the offense of vagrancy, the judgment assessing a fine of $25. The case was filed in the corporation court of the city of Dallas, and there tried, and upon conviction appeal was prosecuted to the county court at law, where the trial resulted as above stated.

The state, through the Assistant Attorney General, suggests the want of jurisdiction in this court to entertain this appeal, calling attention to article 87, C. C. P., wherein it is provided that cases appealed from inferior courts to the county court, and the judgment there rendered consisting of a fine of less than $100, are not appealable to this court. A number of cases are cited in Vernon’s C. C. P. p. 47, sustaining this contention.

The appeal is therefore dismissed.
      iSr^For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    PICKERELL v. STATE.
    (No. 4712.)
    (Court of Criminal Appeals of Texas.
    Oct. 31, 1917.)
    1. Criminal Law ©=448(11) — Opinion Evidence — Testimony as to Anger.
    In a prosecution for slander of a female, testimony that, “My very best opinion is that he was mad, just as mad as he could be,” relating to defendant at the time of making the slanderous remark, was not inadmissible as opinion evidence.
    2. Witnesses ©=>286(1) — Redirect Examination — Scope.
    In a prosecution for slander of a female, the state may, on redirect examination, bring out circumstances of interest in the prosecutrix by the witness to avoid an unfavorable light into which the defendant has ■ put the witness on cross-examination.
    3. Criminal Law <§=>421(1) — Evidence oe Chastity — Reputation.
    In prosecution for slander of a female, where her chastity was in issue, testimony that “one of her girls was sickly, and they were very poor, and I heard her spoken of quite frequently as being a hard working woman, trying' to support this sick girl, and things of that kind,” is inadmissible on direct examination.
    4. Criminal Law <§=>1137(5) — Incompetent Evidence — Invited Error.
    Where evidence on redirect is not materially different from that adduced by defendant on cross-examination, the defendant cannot complain.
    5. Criminal Law <§=>1144(12) — Review—Presumptions.
    Where the statement of facts is silent as to certain evidence, and the bill of exceptions does not state whether it was on direct or redirect examination, it will be assumed to be on redirect, where it would be reversible on direct, -but not improper on redirect.
    6. Criminal Law ©=778(9) — Slander oe Female — Want oe Chastity — Burden of Proof.
    In a prosecution for slander of a female, it was proper to instruct that if the defendant relies on unchastity in the female as a defense, he has the burden of proving it by a preponderance of the evidence.
    7. Criminal Law ©=1056(1) — Instructions —Saving Objections.
    In misdemeanor cases the main charge, if erroneous, must be excepted to in order to get a review of an accurate special charge presented and refused.
    8. Libel and Slander <§=>155 — Slander of a Female — Excitement as a Defense.
    Excitement at the time of making a slanderous remark as to chastity of a female is admissible as bearing upon the issue of intent, but not as a defense, unless it amounted to temporary insanity.
    9. Criminal Law ©=721(5) — Argument to Jury — Comment on Failure to Testify.
    In a prosecution for female slander, statement by county, attorney that the slanderous words were not denied was not .erroneous as a comment on defendants’ failure to testify, where it appeared that there were several witnesses present at the time of the slander, but none were presented to contradict the ’ state’s witnesses.
    10.Libel and Slander <§=>155 — Slander of Female — Reputation Subsequent to Offense.
    In a prosecution for slander of a female, it was incompetent to show that, subsequent to the offense charged, the female’s reputation became bad.
    Appeal from Potter County Court; T. W. McBride, Judge.
    E. E. Pickerell was convicted of slander, and he appeals.
    Affirmed.
    C. E. Gustavus and Reeder, Dooley & Reed-er, all of Amarillo, .for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

The conviction is for slander in imputing a want of chastity to Nellie Rowles, and punishment assessed at a fine of $500, and imprisonment in the county jail for 30 days.

Reversal is sought in the first assignment because a witness said:

“My very best opinion is that he was mad, just as mad as he could be; that is what I thought about it.”

This related to the time that the witness claimed that appellant used the slanderous language. At the time the language on which the prosecution is founded was used appellant was at the courthouse, having been arrested for rape upon the daughter of Nellie Rowles. The witness named in the bill of exceptions under consideration testified that' appellant used the language charged, and on cross-examination! testified to h-js manner and conduct at the time, using in part the following language:

“He was indignant; part due to excitement maybe, but was very much wrought up over it; that is my opinion; he showed that appearance.”

The language complained of in the hill was brought out by the state on redirect examination. The admissibility of the evidence, we think, is settled. Owen v. State, 52 Tex. Cr. R. 69, 105 S. W. 513, and cases cited; 5 Ency. of Ev. p. 701; Logan v. State, 53 S. W. 695; Branch’s Ann. P. C. p. 73, § 132, and cases cited.

One of the witnesses to the language complained of in the prosecution was Henry S. Bishop, ex district attorney. He testified to the effect that appellant had uttered the slanderous words, and on cross-examination appellant proved by him that he was quite friendly with Mrs. Rowles; had gone on her note for $200, and directed his examination to show that the interest of the witness in the prosecution was active. The state on redirect examination was permitted, over appellant’s objection, to prove by the witness Bishop the circumstances under which he had signed the note for Mrs. Rowles for $200 inquired about on cross-examination, and he stated, in substance, that he did so because she was without funds; that her daughter was pregnant, and she desired to go to Oklahoma and take care of her. The rule of evidence, we think, was not transgressed by allowing the state to prove the circumstances under which the note was signed in an effort to avoid the unfavorable light in which the appellant, through his cross-examination, had put the witness by proving his interest in and friendship for Mrs. Rowles, and the fact that he had signed the note. Barber v. State, 69 S. W. 515, and cases there cited; Wigmore on. Evidence, § 952; Wharton’s Crim. Evidence, § 491, also page l000 notes 18 and 19, and cases cited.

The reputation for chastity and virtue of Mrs. Rowles was in issue. One of the state’s witnesses, Dr. McFarlane, testified that her reputation in these respects was good. This was the full purport of his direct examination. On cross-examination he testified that he had heard her spoken of as being quite a nice lady; a hard working lady. Mr. Rowles was sick at the time, and that he never heard her reputation for chastity questioned; that he heard her frequently talked about and her name frequently mentioned. Appellant, in one of his bills of exception, complains that this witness was, at the instance of the state, permitted to say of her the following:

“One of her girls was sickly when she lived there, and they were very poor, and I heard her spoken of quite frequently as being a hard working woman, trying to support this sick girl, and things of that kind. This is all I have ever heard about her.”

The statement of facts does not show this purported testimony. However, in deference to the bill we will assume that it was given and omitted from the statement of facts. The bill fails, however, to show the connection in which it was given, and whether upon direct or redirect examination, rendering it difficult for us to determine whether there, was error committed or not. Clayton v. State, 67 Tex. Cr. R. 311, 149 S. W. 119; Todd v. State, 57 Tex. Cr. R. 15, 121 S. W. 506; Vernon’s C. C. P. p. 543, note 29, subd. 3. The testimony would not have been admissible as original evidence. It is in line with and not materially different from that adduced by appellant on cross-examination, and if drawn out by the state on redirect examination would have been germane to the cross-examination ; at least, under such circumstances it would not have been a matter of which appellant could complain.

In view of the condition of the statement of facts mentioned, and the silence of the bill as to the circumstances under which the evidence complained of was adduced, it will be assumed, in support of the judgment, that it was not proved as original testimony. Bradley v. State, 60 Tex. Cr. R. 398, 132 S. W. 484; Ferguson v. State, 57 Tex. Cr. R. 205, 122 S. W. 551; Kirkpatrick v. State, 57 Tex. Cr. R. 17, 121 S. W. 511; Edgar v. State, 59 Tex. Cr. R. 253, 127 S. W. 1053; Beeson v. State, 60 Tex. Cr. R. 39, 130 S. W. 1006.

The terms “maliciously” and “wantonly” were sufficiently defined in the court’s charge to render the giving of the requested charge relating to them unnecessary.

The court in charging the jury informed them that if at the time of the alleged offense, October 25th, Mrs. Rowles was unchaste or her reputation for chastity was bad, appellant should be acquitted, but told them further that in the establishment of this defense the burden of proving it by the preponderance of the evidence was upon him. This charge was not excepted to, but a special charge on the same subject was refused. The special charge omits the question of burden of proof, and fixes the date of the inquiry on the 26th of October, which was after the complaint was filed.' Appellant cites Dobbs v. State, 55 Tex. Cr. R. 483, 117 S. W. 799, as supporting his contention that the refusal of this, charge was error in depriving him of the submission of his defense in an affirmative manner. In the Dobbs’ Case this court held that a charge authorizing an acquittal if the jury found that the alleged, injured female was unchaste, or her reputation in that resxoect bad,, was necessary, but the holding was made in a, case where the trial court had failed to submit this defense at all. In this case the contrary is true. Under our statute (article 1181,' P. C.) the burden is upon appellant to prove the defense — want of chastity or bad reputation of the alleged injured female. That statute is analogous to the one. on the defense of insanity and construing that it has frequently been held that it is proper for the court to charge that the burden was upon the appellant to prove his defense by a preponderance of the evidence. Webb v. State, 9 Tex. App. 510; Welch v. State, 71 Tex. Cr. R. 17, 157 S. W. 946, and other cases cited in Braneh’é Ann. P. C. p. 20, § 38.

In misdemeanor cases the decisions of' this court hold that the main charge must be excepted to and an accurate special charge-presented. Bradley v. State, 136 S. W. 446; Durham v. State, 57 Tex. Cr. R. 279, 122 S. W. 553; Vernon’s C. C. P. p. 523, note 58. However, we think the main charge fully protected appellant’s rights in the matter in hand.

We think the contention of appellant, that the court should have submitted to the jury his excitement at the time he made the-slanderous declaration as a defense, is not sound. His excitement was admitted with propriety as bearing upon the issue of intent. 18 Am. & Eng. Hncy. of Law, p. 1007; Ifiney. of Evidence, vol. 8, p. 203. The excitement, not amounting to temporary insanity, would not have constituted a defense. Murphy v. State, 43 Tex. Cr. R. 517, 67 S. W. 108; Angel v. State, 45 Tex. Cr. R. 138, 74 S. W. 553;. Branch’s Ann. P. C. p. 21, and cases cited.

In his closing argument the county attorney stated that the uttering of the slanderous-words’had not been denied,- and upon, this is based the contention that appellant’s failure to testify was commented upon contrary to article 790, Or. O. Two witnesses testified to the uttering of the slanderous words; both of them claimed that there were other persons present, giving the names of some of them. These others were not called as witnesses to contradict the state’s evidence. The bill does not show error. Ethridge v. State, 74 Tex. Cr. R. 635, 169 S. W. 1152; Taylor v. State, 76 Tex. Cr. R. 642, 177 S. W. 82; Pullen v. State, 70 Tex. Cr. R. 156, 156 S. W. 935.

The evidence offered to show that some two months subsequent to the date of the offense the alleged injured female’s reputation for chastity was had was, we think, properly excluded. Such evidence was expressly held inadmissible in Richmond v. State, 58 Tex. Cr. R. 436, 126 S. W. 596, 137 Am. St. Rep. 973, and substantially so in Jackson v. State, 42 Tex. Cr. R. 497, 60 S. W. 963. Both eases, we think, are founded upon sound reasoning.

We have examined the matters presented in the record, and, finding no reversible error, the judgment of the lower court is affirmed.
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author: PRENDERGAST, J.

text:
    BALDWIN v. STATE.
    (No. 4608.)
    (Court of Criminal Appeals of Texas.
    Oct. 31, 1917.)
    1. Indictment and Information <§=3110(51) —Following Language oe Statute — Pandering.
    In a prosecution under Vernon’s Ann. Pen. Code 1916, art. 506a, as to pandering, an indictment charging that defendant did unlawfully procure, and was connected in procuring, with her consent, a female inmate named for a house of prostitution followed fully tho language prescribing offense and was sufficient.
    2. Prostitution @=4 — Pandering — Evidence— Sufficiency.
    The evidence was sufficient to establish defendant’s guilt.
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    Henry Baldwin was convicted of pandering, and appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was in-dieted and convicted of the offense of pandering.

The indictment, after the usual allegations of the proper organization of the grand jury, alleged that appellant, on July 30, 1916, “did unlawfully procure, and was concerned in procuring, with her consent, a female inmate, to wit, Agnes Yarbrough, for a house of prostitution.” There were other counts of the indictment, but as this alone was submitted, it is unnecessary to state the others.

The statute prescribing this offense (article 506a, 1 Vernon’s Crim. Stats., Acts 1911, p. 29) enumerates quite a number of differ-. ent acts in the alternative, all with the same penalty, prescribing how this offense may be committed. It is unnecessary to quote the whole article. We will quote the one under which this prosecution was had.- It is:

“Any person who shall procure, or attempt to procure, or be concerned in procuring, with or without her consent, a female inmate for a house of prostitution, * * * ” shall be guilty of pandering, etc.

It will be noticed that the indictment herein. follows completely, in alleging the acts constituting the offense, the language of this statute. Appellant made a motion to quash this count on the ground .that by a fair construction of the words used it appears that Agnes Yarbrough was already an inmate of a house of prostitution, and that it would be impossible to procure her as an inmate for such house, and that it is at best paradoxical, and does not charge in plain and intelligible language any offense known to the law, and that in order to constitute a good pleading the state should have alleged by appropriate averment that defendant “procured, and was concerned in procuring, a female person, to wit: Agnes Yarbrough, as an inmate for a house of prostitution.” None of appellant’s contentions can be sustained. As stated, the averment in the indictment follows fully the language prescribing the offense, and it-has been held, under this statute, that when this is the case the indictment is sufficient. Jones v. State, 72 Tex. Cr. R. 500, 162 S. W. 1142; Clark v. State, 76 Tex. Cr. R. 350, 174 S. W. 354, and cases there cited; section 344, ■White’s Ann. C. C. P., and cases there cited.

Agnes Yarbrough, a young woman, testified that in the latter part of July, 1916, she lived at Elam, out in the country with her parents; that she had been married, but was then separated from her husband. She further testified:

“I first met Mr. Baldwin when I went up there one night to his place to get a room. I just came to town to do some trading, and just thought I would get a room to spend the night. I just saw where it said ‘Hotel’ and went up and got a room. That was the first time I had ever met the proprietor of that rooming house. This defendant is the man from whom I rented a room. I rented a room from him for the purpose of staying all night. It was about an hour after I rented the room when the defendant came, and talked to me. He asked me if I didn’t want to stay up there, and said I could make lots of money, and said it was a good place, and I could make good money, and I asked him how, and he says, ‘Standing men,’ and I says that was-something I never did and never had done. I had never stayed with any man except my husband. ' Mr. Baldwin told me what to say to the men, and he would show me to the man, and then toid me what to say to him and what to do, and everything about staying with them. He said not to let a man go down the steps if he offered me $2, and if I did let him go down the steps he got awful mad. That was afterwards. Mr. Baldwin brought me the first man that I stayed with in that house. He brought me about four or five men that night. I stayed with each of them. By that I mean I had carnal knowledge of them. I charged them for it; they paid me $2 apiece, and I gave the defendant a dollar; Mr. Baldwin charged me $3.50 a week room rent. I stayed there from the latter part of July up until some time in November, and then I got burned and went home. For every man that stayed with me from that night on, I gave Mr. Baldwin a dollar.”

She further testified that while staying in said house and plying her vocation other women, she naming several, during said time, also came to said house and plied their vocation of prostitution, and for each man they stayed with they would give appellant a dollar each time. They had no connection with her, and came at different times from the time she was induced to stay there. She further swore that while there whenever she fined a date with a man she got $2 for it and paid Baldwin $1 and kept $1, “except that one time he told me to go and stay with a man for $1.25, and he took the dollar and left me the quarter.” It was proven that appellant had run said house for some 3 years before this prosecution was begun, and that it was a rooming house or hotel over the Stag saloon in Dallas.

The state proved by Mr. Parsons, a police officer of Dallas, that he knew the general reputation of that house as a house of prostitution, and that that reputation of it was bad.

W. E. Powell testified that he knew appellant and the house he kept, and that he knew said witness Agnes Yarbrough, and had known her for a long time; that while Agnes Yarbrough was in that house he was up there twice and talked to her, and that while he was there the second time he saw a man come in and speak to appellant and then went back and talked to Agnes, and the man then went in a room and stayed with her about 30 minutes; that when she came out she went and paid appellant some money.

Grace Rogers testified she was 20 years old, knew appellant and where his house was situated; that she went up there in March, 1916, and lived up there some time; that she left there some two or three weeks before appellant was arrested in this case; that while there she had sexual intercourse with various men, and received money therefor; that she paid part of the money to appellant and kept some of the money herself.

Neta Underwood, a young woman, testified that she knew appellant and where his place was; that she had been there many times; that he asked said witness Agnes her phone number, which she told him, and that he invited her up there, stating he had a proposition to make to her; that she went up there, and “he told me I could work for my room rent, and every time I went to a room with a man I would have to pay $1, and the man would pay me $2; I mean I would have intercourse with a man for $2, and then would give Mr. Baldwin $1. I gave that money to Mr. Baldwin.”

Jewel Franklin, a young woman, testified that she knew appellant and. his place, and went to his place in 1916, and “I was at his place between three and four weeks.” She testified:

“I had a conversation with defendant when I went there. I went there some time in November of 1916, last year. He told me to get two dollars, and give him one and keep one; that was for trick money. I stayed there about three weeks, I think. When I turned a trick I gave up part of the money and kept' part. I gave part to Mr. Baldwin; I gave him his part and kept my own. I did that for every trick I turned. I gave him his trick money, his part. I call this trick money — $2, $1 for me and one for him; trick money is money that you get when you turn a trick with a man.”

The full testimony of none of these witnesses is given because deemed unnecessary. In their further direct, cross, and redirect testimony much other evidence was given by them tending to establish the same facts where their testimony is quoted above.

Appellant and his wife both testified and denied that they kept said house as a house of prostitution, and all knowledge of the women who stayed there as plying their vocations. He also introduced several witnesses who testified to his good reputation as a peaceable, law-abiding man.

The state, in rebuttal, introduced Mr. J. J. Smith, a farmer who lived at Lancaster, in Dallas county, who testified that he knew appellant and where his said place was located; that he had been there twice; that the first time he went there he got a room from appellant himself, and when he registered he asked him if there were any girls up there, and -he replied the girls were out; that he went up to bed and stayed there that night. That he-was there again in October or November, 19X6, and said:

‘.T stayed with a woman there then; I stayed with Agnes, who is out here in the witness room. The defendant Baldwin was in the house at that time; that was in the afternoon. I paid the woman for it.”

On cross-examination he testified that:

When he went there the second trip, in October or November, “that was the time I stayed with the woman; I went up there that time in the afternoon about 2 or 2:30 o’clock. Mr. Baldwin was in there at that time, but I never said anything to him, but I just went on and made arrangements and told her what I wanted, and we went in the room; Baldwin was up in the hall when I went in the room; Baldwin was at the head of the stairs, or something like the head of the stairs, and I walked on by him.”

A. W. Mosier testified that he lived at Hutchins, in Dallas county, all his life; that he had seen appellant and knew where his place was, and had been up there; that Joe Lee Chilton, who also lives at Hutchins, went up there with him. He said:

“We went up there at night. I saw Mr. Baldwin when I first got up there. We sat down there in the hall. We saw Grace, this girl out here; she was lying on the bed. I sat down there in the hall, and Grace came in the hall to where I was. Then Mr. Baldwin went back to the back end. Then Grace came in there; nobody else came in; no other girl came in. Yes, Agnes came in there; she came after Mr. Baldwin left. Then I went to the room with Agnes. Joe Lee Chilton went out with Grace. I paid for it.”

On cross-examination he further swore that he saw said Chilton go in a room with a woman; that Chilton went in one room, and he, witness, went in another; that he paid the girl he went in the room with $3 hut he did not know what she did with it.

Undoubtedly the testimony clearly establishes appellant’s guilt under the law.

The court gave some of appellant’s specially requested charges, and in his main charge copied and gave substantially another or others requested by appellant. Upon the whole, the charge the court gave was full, complete, and apt, correctly laying down the law and submitting every issue that was raised by the testimony.

Appellant has several bills of exceptions in the record, but they were all filed too late to be considered; hence the Assistant Attorney General’s motion to strike them out and not consider them must be sustained.

The ease seems to have been well tried on both sides, appellant had a fair and impartial trial, and there is no reversible error presented that would authorize this court to reverse the judgment. It will therefore be affirmed.
      ®r=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes '