text:
    WILBURTON v. STATE.
    (No. 3786.)
    (Court of Criminal Appeals of Texas.
    Nov. 3, 1915.)
    1. Criminal Law <&wkey;1069 — Appeal—Conditions Precedent — Passing oe Sentence.
    An appeal does not lie until sentence has been pronounced on accused found guilty.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2691-2699; Dec. Dig. &wkey; 1069.]
    2. Criminal Law <&wkey;1099 — Record—Statement oe Facts — Time oe Filing.
    Accused, sentenced at a term subsequent to the term at which he was convicted, has 90 days after sentence in which to prepare and file a statement of facts, and a statement of facts filed within that time must be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. <§=> 1099.]
    3. Criminal Law <&wkey;928 — Trial — Misconduct oe Jury.
    Where, on a trial for forgery of an in-dorsement on a draft for $76.50, the prosecuting witness testified that he had not indorsed the draft nor signed the names thereto, the statement of a juror, before a vote was taken by the jury, that he knew that the prosecuting witness would not swear another man into the penitentiary for $75, was not the giving of additional testimony, and a motion for a new trial on that ground was properly denied, in the absence of anything to indicate that the juror had ever known the prosecuting witness before being impaneled on the jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2263-2271; Dec. Dig. <&wkey;> 928.]
    4. Criminal Law <&wkey;>1159 — Verdict — Conclusiveness.
    A conviction on conflicting testimony and sustained, by testimony will not be disturbed on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3074-3083; Dec. Dig. <&wkey;> 1159.]
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    J. A. Wilburton was convicted of forgery, and he appeals.
    Affirmed.
    Butler L. Knight and Russell B. Wine, both of San Antonio, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of forgery, and his punishment assessed at two years’ confinement in the state penitentiary.

The sentence was not pronounced on appellant at the term of court at which appellant was tried, but he was sentenced at a subsequent term of court. As no appeal would lie until sentence was pronounced, appellant had 90 days after sentence in which to prepare and file a statement of facts. As the statement of facts was filed within the time required by law after the pronouncing of the sentence, the motion to strike out the statement of facts is overruled. However, the record contains no bills of exception, and, as presented to us, there are but two questions we can review: (1) Did the court err in refusing to grant a new trial because the jury received additional testimony; and (2) will the testimony sustain the verdict?

To the motion for a new trial is attached the affidavit of one of the jurors, who says:

“My name is O. L. Gruzevski, one of the jurors who sat on the case of State v. J. A. Wil--burton charged with forgery in Thirty-Seventh judicial district court, Bexar county, Tex., and I make the following affidavit: I incidentally remarked to said defendants’ counsel, a day or two after said case was tried, that one of the jurors made the statement in the jury room that he knew that Ed Gutzeit would not swear another man into the penitentiary for $75. This statement was made before a vote was taken. I do not know the juror’s name making said positive statement, but he was a large, tall man.”

This is all the affidavit and all the remark that it is claimed was made. Jurors, of course, necessarily discuss the testimony, and for one of the jurors to say “that he knew Ed Gutzeit would not swear another man into the penitentiary for $75” is but an expression of the witness in regard to the testimony adduced on the trial. Appellant was charged with forging the name of Gutzeit Bros., Ed Gutzeit, to an indorsement on a draft for $76.50, guaranteeing the payment of the draft. So the issue to be decided in the case was whether or not appellant had forged those names to the draft. Ed Gut-zeit was a witness in the case and had testified that he had not indorsed the draft nor signed the names thereto. There is nothing in the affidavit to indicate the juror had ever known Ed Gutzeit before being impaneled on the jury. He had heard him testify, and for him to say he knew Gutzeit would not swear another man in the penitentiary for $75 was but an expression of his opinion on the testimony adduced on the trial. This was not giving additional testimony, and the court did not err in overruling the motion for new trial on this ground.

On the question of the sufficiency of the testimony, we will say there was a sharp issue as to whether Ed Gutzeit signed the $76 draft. He positively swore he did not sign the $74 draft, and said that was a forgery also, but paid it to help appellant out of trouble. Appellant swore that Gutzeit signed both of them. Experts were called, and Mr. Lentz, a banker, testified that, in his opinion, the signature to that draft and one to a check admitted to have been written by Gutzeit was the same, but was the only one who so testified. Mr. Matthews, another banker, said there was some similarity, but he could not say they were the same. Mr. Haile testified, “The handwriting seems to differ,” while Mr. Boetz testified that the signature to the alleged forged check was not the signature of Gutzeit.

With this conflict in the testimony, we cannot say the jury were not justified in returning the verdict they did return.

The judgment is affirmed.
      <§=^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    DURLEY v. STATE.
    (No. 3785.)
    (Court of Criminal Appeals of Texas.
    Nov. 3, 1915.)
    1. Criminal Law <&wkey;1170 — Rulings on Evidence-Prejudicial Error.
    Where, on a trial for cattle theft, a state’s witness confessed that he was a thief and that, he had aided accused in the theft, the exclusion of evidence on cross-examination that the witness had attempted to get .a third person to aid in stealing- cattle was not prejudicial, especially where the witness had-already testified on the direct that he had talked with the third person about going with him and accused to steal cattle, and that the third person had refused.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 3145-3153; Dec. Dig. <§=> 1170.]
    2. Criminal Law i&wkey;829 — Instructions—Refusal of Instructions Covered by Instructions Given.
    Where the court gave a proper charge on an issue, it was not necessary to give a special requested charge thereon.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. <S&wkey;829.]
    Appeal from District Court, Upshur County; J. A. Ward, Judge. •
    Dave Durley was convicted of cattle theft, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of cattle theft, and his punishmént assessed at two years’ confinement in the penitentiary.

Pomp Boren testified as a witness for the state, and stated that he, appellant, and Jake Bolton had stolen the cow. In a hill of exceptions it is shown that after the witness had been excused appellant recalled him, and desired to ask him:

“Did you not, just a short time before the killing of this Brawley cow, have a conversation with Early Skinner, in which just you and Early Skinner were together, in which you stated to him or .asked him to go with you to kill some cattle, and he refused to do it?”

The court sustained the objection, and of this action of the qourt appellant complains. The witness Boren had confessed he was a thief, and had aided in the theft of the Brawley cow, and to prove that he desired to get Skinner to aid in stealing other cattle would not add to his moral turpitude. In addition to this, the record discloses that on direct examination he had testified that while rabbit hunting he had talked with Early Skinner about going with him and appellant to steal cattle, and Early Skinner had refused. So that the testimony sought to be elicited would have been but a reiteration of what he had already testified to when first called as a witness.

The only other bill of exceptions in the record complains of the action of the court in overruling his motion for a new trial, and in it — the only other question than that discussed above — is that the charge of the court on alibi placed the burden on defendant to prove this defense. This paragraph of the charge is not subject to such criticism, and is in language frequently approved by this court. And, having given this charge, it was not necessary to give the special charge requested on that issue.

The judgment is affirmed.


author: HAIRPER, J.

text:
    FONDREN v. STATE.
    (No. 3766.)
    (Court of Criminal Appeals of Texas.
    Nov. 3, 1915.
    Rehearing Denied Nov. 17, 1915.)
    1. Criminal Law <&wkey;1091 — Questions Reviewable — Statutory Provisions.
    Under Code Cr. Proc. 1911, art. 938, providing that the court on appeal shall presume that the venue was proven in the trial court unless made an issue therein, and it affirmatively appears to the contrary by bill of exceptions signed and allowed by the trial judge, a bill of exceptions, complaining of refusal to charge to acquit because the venue had not been proven, does not show that the venue was made an issue during the trial and presents no question for review. „
    [Ed. Note. — For other cases, see 'Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. <&wkey;1091.]
    2. Criminal Law c&wkey;>508 — Accomplices—Incompetency — Extrinsic Evidence.
    Under Code Cr. Proc. 1911, art. 791, declaring that persons charged as principals, accomplices, or accessories cannot be witnesses for one another, and article 792, authorizing the court to interrogate a person offered as a witness to ascertain whether he is competent to testify, accused charged with gaming may not complain because the state proved that a witness called by accused was indicted for committing the same offense with accused, especially where the court erroneously permitted the witness to testify for accused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1099-1123; Dec. Dig. &wkey; 508; Witnesses, Cent. Dig. §§ 244-248.]
    3. Criminal Law <&wkey;1170% — Rulings on Evidence — Prejudicial Error.
    The state may, to disqualify accused’s witness under Code Or. Proc. 1911, arts. 791, 792. prove that he was also indicted for the same offense, and the mere fact that the court in permitting the state to prove that fact erroneously stated that the evidence was admissible to affect the credibility of the witness was not prejudicial to accused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3129-3135.; Dec. Dig. <@=>1170%.]
    4. Gaming <&wkey;72 — Criminal Offenses — “Private Residence.”
    Pen. Code 1911, art. 548, making card playing in any place other than a private residence occupied by a family an offense, makes it an offense to play cards in the private room of a boarder at a hotel or boarding house; the boarder being a single man and no family occupying the room.
    [Ed. Note. — For other cases, see Gaming, Cent. Dig. §§ 168-186; Dec. Dig. &wkey;>72.
    For other definitions, see Words and Phrases, First and Second Series, Private Residence.]
    Appeal from Tyler County Court; Tom F. Coleman, Judge.
    Pink Fondren was convicted of gaming, and be appeals.
    Affirmed.

      Joe W. Thomas, of Woodville, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HAIRPER, J.

Appellant was convicted of gaming, and his punishment assessed at a fine of $12.50.

Will Harris testified:

“I live at Warren, Tex. I am deputy sheriff of Tyler county, and was on January 16, 1914. I remember the occurrence on the night of January 16, 1914, where two parties and myself found Pink Fondren and Albert Pennington and Joe Williford. This occurred in an old store building and warehouse used one time by George Wooley; the back used as warehouse. It is composed of two rooms, the front room used at one time as a cold drink stand. We found the door on north side of back room barred and paper in the keyhole. We came around to the window and couldn’t get in on that side. Got a stick, then got out my knife and cut a hole in an old comfort that was used as a blind over the window. It was a cheap comfort, with the cotton scattered in it, and you could see through it; cost about 75 cents or $1. They had two boards placed edge on edge at the bottom of the quilt as a dead fall. I could see motions of cards through the comfort, and after I cut it I could see them good. They were playing cards. I know they were playing cards. I watched them about 15 minutes, until I got tired.”

While the case was being presented to the jury, and after the evidence had closed, appellant requested the court to instruct the jury to return a verdict of not guilty on the ground that the venue had not been proven. This contention would have been sound had not article 938 of the Code of Criminal Procedure been amended in 1897. By that article it is now provided this court, on appeal, shall presume that venue was proven in the court below, unless such matters were made an issue in the court below, and it affirmatively appears to the contrary by bill of exceptions properly signed and allowed by the trial judge. The only bill in the record relating to this matter is one reserved to the failure of the court to give this special charge. This in no way evidences that venue was made an issue during the trial of the case, and, if in fact we take the record as a whole, the statement of facts evidences that no such issue was made on the trial, but the whole case proceeded upon the theory that the house in Warren in which the deputy sheriff of Tyler county says he found appellant and two others gaming was in Tyler county. Barker v. State, 47 S. W. 980. While it may be said that there is no one who swore positively that the house, in which the card playiDg is said to have taken place, was in Tyler county, yet the jury, under the facts and circumstances in this case, would have been authorized to so find had that been made an issue and the court submitted it to the jury in his charge.

By the above testimony it is seen that the state’s witnesses testified that appellant, Albert Pennington, and Joe Willi-ford were playing together. When the defendant called Joe Williford as a witness, the state objected and proved by him that he was under indictment for the same offense. The objection to the witness testifying should have been sustained. Article 791, O. O. P., specifically declares that Williford was not a competent witness for defendant. Article 792 provides that evidence may be introduced to prove him an incompetent witness. Consequently, there was no error in permitting the state to introduce evidence that Williford was indicted, charged with the same offense. The only error committed was in permitting the witness to testify after the state had made this proof. As the defendant called Williford as a witness, he will not be heard to complain that the state offered proof showing that he was an incompetent witness And especially has he no ground of complaint, since the court erroneously overruled the objection and permitted the witness to testify at his instance.

As to Albert Pennington, it was permissible for the state to seek also to disqualify him as he was also indicted for the same offense. However, there was no error in permitting him to testify for the defendant, as he testified he had paid his fine. When he was convicted and paid his fine, this removed the bar of incompeteney as a witness. The fact the court said he would permit the state to make the inquiry to affect the credit of the witnesses does not render the inquiry improper ; it was only giving a wrong reason. The testimony was not admissible to affect their credit, but was admissible on the issue of whether or not they were competent to testify as witnesses for appellant. As before stated, the court erred in permitting Willi-ford to testify for defendant after the proof had been made, but there was no error in permitting Pennington to testify as he showed he had paid the penalty. As the defendant got the benefit of both the competent and incompetent witness, it is a matter of which he cannot be heard to complain.

Appellant contends that, if he did play at a game of cards (which he denies), it was in his room in Poland’s boarding house. W. I. Poland testified:

“I lived in Warren, Tex., on the night of January 16, 1914. Was then, and my family are now, running the boarding house at Warren. I have two houses, about 100 yards apart. One we live in, and the other I use for my boarders to room in, and the house in question where Joe Williford and Dick Barclay slept at that time was then used by me as a sleeping apartment for my boarders, and Joe Williford occupied the middle room, slept there and had all his clothes, a grip, etc., in that room, also at that time a man named Geo. Orone had his household goods in that room of Joe Williford. He asked me to let him store them in there for a few days, and I let him do so. They were moved in about two weeks, just so soon as he could get him a house. Joe Williford used that room just as any boarder uses a room to live and sleep in; it was his private room. He had been working and boarding with me about two or three months using the room in that manner.”

Counsel cite a great many old authorities holding that it is no offense to play in one’s room at a boarding house, but he apparently does not recall that this is no longer the law in this state. The statute now provides, and has provided for several years, that card playing in any place, other than a private residence occupied by a family, is an offense. See Pen. Code, art. 548, as amended in 1901. Since the amendment of that article of the Code, it has always been held to be an offense to play cards in the private room of a boarder at a hotel or boarding house. In this case it was not contended that appellant was a married man, and his family resided in the room. All of the record demonstrates that no family occupied the room. The evidence of the absent witness was therefore material to no issue in the case, and the facts it was alleged could be proven by him were not contested, and were proven by Mr. Poland and other witnesses, and if true would be no defense.

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


author: PRENDERGAST, P. J.

text:
    GARCIA v. STATE.
    (No. 3778.)
    (Court of Criminal Appeals of Texas.
    Nov. 3, 1915.)
    Gaming <&wkey;72 — Criminal Offenses — “Private Residence.”
    A railroad box car set flat on the ground is not a “private residence” within the statute punishing gaming, where the car was only occupied by men who did their own cooking in the car and ate their meals therein and slept therein.
    [Ed. Note. — For other cases, see Gaming, Cent. Dig. §§ 168-186; Dec. Dig. &wkey;>72.
    For other definitions, see Words and Phrases, First and Second Series, Private Residence.]
    Appeal from Lee County Court; John H. Tate, Judge.
    Miguel Garcia was convicted of gaming, and he appeals.
    Affirmed.
    Wm. O. Bowers, of Giddings, for appellant. P. J. Alexander, Co. Atty., of Giddings, and O. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of gaming, and the lowest fine imposed.

The evidence, without question, is amply sufficient to sustain the conviction. Appellant contends that the evidence shows that where the gaming occurred was a private residence occupied by a family, and hence the conviction cannot be sustained. We think his contention is untenable. On this issue the evidence shows that appellant .and several other Mexicans were caught gambling with cards in a railroad box car without wheels and set flat on the ground. The section boss testified that he and his family occupied two such cars, where they ate, slept, and lived; that where these Mexicans, including appellant, were caught gambling, was in another box car 250 feet distant from the cars 'occupied by him and his family; that all those Mexicans except one were bachelors ; that one was a married man, but his wife was in Mexico; that these Mexicans did their own cooking in the car occupied by them and ate their meals therein and also slept therein; that none of them ate or slept or had their meals prepared in the cars occupied by him and his family.

We had occasion, in the recent cases of Stallings v. State, 170 S. W. 159, and Sloan v. State, 170 S. W. 156, to discuss the statute and what in contemplation of our present law was a private residence occupied by a family in which card playing could be indulged without violating the law. We also cited and discussed many cases decided by this court. Under the statute as it now is and saidi decisions, we think that the car where appellant and his associates were gambling was not a “private residence” occupied by a family, nor was it the private residence of the section foreman and his family. See, also, Fondren v. State, 179 S. W. 1170, this day decided. We think the case of Hipp v. State, cited by appellant, 45 Tex. Cr. R. 200, 75 S. W. 28, 62 L. R. A. 973, is not applicable to this case.

The judgment is affirmed.


text:
    COLEMAN v. STATE.
    (No. 3743.)
    (Court of Criminal Appeals of Texas.
    Oct. 27, 1915.
    State’s Rehearing Denied Nov. 24, 1915.)
    1. CRIMINAL Law <&wkey;595 —Continuance — Abandonment afteri Seduction and Marriage — Evidence—Materiality.
    In a prosecution for abandonment after seduction and marriage, the testimony of a witness, on account of whose absence a continuance was sought, and who if present would testify that before the alleged seduction he saw pros-ecutrix and a person other than defendant in the act of sexual intercourse was material on the issue of the virtue and chastity of prosecutrix, especially where there was evidence of other improper conduct by prosecutrix.
    TEd. Note. — For other cases, see Criminal I;aw, Cent. Dig. §§ 1311, 1323-1327; Dec. Dig. &wkey;s595.]
    2. Criminal Law <&wkey;>598 — Denial of Continuance-Diligence.
    The denial, for lack of diligence, of a continuance in a criminal case because of the absence of a witness was erroneous, where it appeared that once before the witness had failed to attend court, and an attachment had been issued, and he had been placed under bond, after which he attended court regularly, and that when he failed to appear on the first day of the present term, defendant had other process issued to him, and it did not appear that, though the witness had left the state, defendant knew, oi had reason to believe, that he had gone.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1335-1341; Dec. Dig. &wkey;s 598.]
    3. Husband and Wife <S&wkey;313 — Abandonment after Seduction and Marriage— Evidence.
    Where, in a prosecution for abandonment after seduction and marriage, the evidence showed that both prosecutrix and defendant had dark hair and were of dark complexion, that prosecutrix’s baby and uncle both had red hair and were of ruddy complexion, and that the uncle had for several years prior to the alleged seduction made his home with the father of prosecutrix, it was error to exclude the. testimony of a witness that on a certain occasion he saw a woman, whom' he believed from facts stated to be prosecutrix, sitting in the uncle’s lap.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 1110; Dec. Dig. &wkey;313.]
    4. HUSBAND AND WIFE i&wkey;302 — ABANDONMENT after Seduction and Marriage — Offense.
    It is not essential to the right to prosecute for abandonment after seduction and marriage that the marriage shall have taken place after indictment, but is sufficient that a complaint charging seduction shall have been filed, a warrant issued, and defendant arrested.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 1100; Dec. Dig. &wkey;302.)

      5. Husband and Wife &wkey;>313 — Abandonment after Seduction and Marriage-Evidence.
    In a prosecution for abandonment after seduction and marriage, defendant’s evidence that he married prosecutrix under duress, and not voluntarily, and that he . immediately brought suit to annul the marriage, alleging duress as grounds for annulment, was admissible to rebut the presumption arising from the marriage that he was guilty of seduction.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 1110; Dec. Dig. &wkey;313.]
    0. Husband and Wife &wkey;»313 — Abandonment after Seduction and Marriage— Evidence — Divorce Decree.
    In a prosecution for abandonment after seduction and marriage, a decree, divorcing defendant from prosecutrix, not being binding on the state,' was not admissible in evidence.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 1110; Dec. Dig. &wkey;313.]
    Appeal from District Court, Bowie County; H. F. O’Neal, Judge.
    Bascom Coleman was convicted, of abandonment after seduction and marriage, and appeals.
    Reversed and remanded.
    J. S. Crumpton, of New Boston, for appellant. Hugh Carney, Dist. Atty., of Atlanta, and C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of abandonment after seduction and marriage and his punishment assessed at 6 years’ confinement in the state penitentiary.

The testimony of appellant would show that he admitted having sexual intercourse with the young lady on a number of different occasions, but he most emphatically denies it was under promise of marriage, or that he was ever engaged to marry her. This is the second appeal in this ease, the opinion on the former appeal being reported in 71 Tex. Cr. R. 20, 158 S. W. 1137. As the opinion in that case states the evidence rather fully, we deem it necessary to state only that portion of the testimony rendered necessary in passing on the various bills of exception.

The first bill relates to the court overruling his second application for a continuance. This continuance was sought on account of the absence of W. S. Strain. He states the witness would swear if present that:

“In July, 1911, while on the road leading from Oak Grove to the house of prosecutrix, he observed prosecutrix and one whom he took to be Put Bodwell in the act of sexual intercourse.”

This is prior to the time that prosecutrix says appellant led her astray under a promise of marriage. The materiality of this testimony is made more apparent by other testimony in the record.

Emmett Phillips testified he went with the prosecutrix, prior to the date of the alleged seduction, to church and other places; that she permitted him to place his arms around her, hug, and kiss her. Wesley Hazlewood testified that prosecutrix had willingly permitted him to kiss her on divers and sundry occasions. J. R Morrison testified he had occasion to go to the home of prosecutrix to see her father, Mr. Burton; that no one else was at home except prosecutrix, and she was dressed in man’s clothes, and pulled a razor out of her pocket; that he asked her if she was fixing to shave, and she merely laughed; that on another occasion he was driving by the home of prosecutrix, and he saw her dressed in men’s clothes sitting astride of the water shelf on the gallery, in about 15 steps of the public road, and in plain view of the road. Morrison says his daughters were with him on this latter occasion, and one of them remarked, “I will swear to God, Hattie,” when Hattie, pros-ecutrix, replied, “I am not ashamed.;” that he saw her dressed in men’s clothes on other occasions. This all occurred prior to the alleged seduction, and one of the contentions of appellant is that the prosecutrix was not a chaste and virtuous woman at the time of and prior to the date on which he was charged with this offense. At this date Miss Plat-tie was 19 or 20 years of age. If he could have followed this testimony with the testimony of the witness Strain, it is readily seen how material it would have been on the issue of the young lady’s virtue and chastity.

The court overruled the application on account of lack of diligence. It appears from the record that once before the witness had failed to attend court, and an attachment was issued and he was placed under bond and, after being placed under bond, had attended court regularly, and was present at the term of court immediately preceding the one at which the trial was had. On the first day of this term of court, the witness failing to appear, appellant at once had other process issued for him to Bowie county. In the contest to the motion, it is shown that since the last term of court, the witness Strain had gone to Oklahoma. If appellant knew, or was shown to have been made aware, of any fact that would put him upon inquiry whereby he could have ascertained that the witness had gone to Oklahoma, then certainly he would have been lacking in diligence. While the fact is shown that the witness had perhaps gone to Oklahoma at the time the last process was issued at the beginning of this term of the court, yet there is nothing in the record that would suggest that appellant was aware of the fact, or in possession of any fact that would put him upon inquiry so as to ascertain that fact. He had had the witness placed under bond to attend court, the witness had attended the two terms immediately preceding the term of the court, and we think the continuance should have been granted; for it is shown that upon a former occasion the witness had testified to the statement appellant states he desired to prove by him, which was upon a most material issue in the case, and, if true, would entitle appellant to an acquittal.

On the trial of the case, while the prosecutrix was testifying, appellant proved by her that the color of her hair was black or dark; that she was dark-skinned, and that appellant also had dark hair and was of dark complexion. He then proved by her that the baby, which a.t the time of this trial was between 2 and 3 years old, had red hair and was of light or ruddy complexion, and was freckled. He also proved that Bud Wolfe was red-haired and had a ruddy complexion, and was making the home of the father of prosecutrix his home at the time of and for several years prior to the alleged seduction; that she was about 20 years old at the time, and that Bud Wolfe was about 24 years of age; that he was her uncle. After making this proof he called G. C. Sargent as a witness, who, if he had been permitted, would have testified:

“That he had occasion to stop in front of the home of the parents of the prosecutrix after night during the year 1911, and that he looked through a window in said home and saw Bud Wolfe, a man whom he recognized. Later a woman came by and the said Wolfe caught hold of her and pulled her down in his lap. That the witness was well acquainted with the Burton family. That he knew that there were only two grown women that resided on said place, to wit, the prosecutrix and her mother. That he knew that it was not her mother, and that, taking the size and features and because of his acquaintance with the prosecutrix, he took it to be she that was sitting • in the lap of the said Wolfe, and that to the best of his knowledge, it was prosecutrix that he saw in the lap of the said Bud Wolfe.”

The court erred in sustaining objection to this testimony. The fact that Bud Wolfe was her uncle would go to the weight to be given the testimony and not its admissibility, and whether or not his testimony sufficiently identified the prosecutrix in this case as the woman sitting in his lap would also be upon the weight to be given it, and not go to its admissibility. He states facts that, if true, would render it morally certain that it was the prosecutrix in Wolfe’s lap on that night.

Appellant seems to contend that the marriage must have taken place after indictment found before a prosecution could be maintained for abandonment after seduction and marriage. This is not a correct construction of the statute. A prosecution is begun by the filing of the complaint charging him with the offense. It is the offer of marriage that must take place before pleading to an indictment for the offense. The facts in this case would show that a complaint was filed, charging appellant with seduction, warrant was issued, and he was arrested. If those steps are taken, and appellant married her to avoid a prosecution for seduction, and then abandoned her without cause, he could be prosecuted for abandonment after seduction and marriage, and the bills raising these questions present no error.

However, when it is proven that a complaint has been filed; that appellant was arrested thereon; that he subsequently married the girl, and the prosecution for seduction dismissed, this evidence would have a tendency to prove him guilty of having seduced the girl, and if appellant desired to introduce testimony that, instead of marrying the girl voluntarily, he was forced and compelled to do so, he should be permitted to do so to rebut the presumption arising from the marriage that he was guilty of seduction. The state’s testimony would have appellant admitting his guilt to the father, and voluntarily marrying the girl after prosecution was begun, .and then abandoning her. The appellant contends that he did not admit his guilt to the father or any other person; that he told the father he had never been engaged to the prosecutrix, and refused to accompany the father to his home, and that he was then arrested; that by the acts and conduct of prosecutrix’s father and brothers, Bud Wolfe, and other relations he was forced to marry the girl to avoid trouble; that immediately after the marriage (the first opportunity) he left, and almost immediately brought suit to annul the marriage, alleging duress as grounds why the marriage should be declared void. These facts and all evidence bearing thereon should be admitted in evidence on another trial.

But the court did not err in excluding the judgment decreeing a divorce. • That judgment would not be binding upon the state in its prosecution. It was not a party to the divorce suit,' and could not be bound thereby. Greenleaf on Evidence, vol. 1, page 581, lays down the following rule:

“Upon the foregoing principles it is obvious that as a general rule a verdict and judgment in a criminal ease, though admissible to establish the fact of the more rendition of the judgment, cannot be given in evidence in a civil action to establish the facts on which it was rendered. If the defendant was convicted it might have been on evidence of the very plaintiff in the civil action; and, if he was acquitted, it. may have been by collusion with the prosecutor. And beside this, and upon more general grounds, there is no mutuality. The facts are not the same, neither are the rules or decisions-o£ tlie court in proceeding tie same. The defendant could not avail himself in the criminal trial of any. admissions of the plaintiff'in the civil action, and, on the other hand, the jury in the civil action must decide upon the mere preponderance of the evidence, whereas in a criminal conviction they must be satisfied as to a party’s guilt beyond a reasonable doubt. The same principles render a judgment in a civil action inadmissible in a criminal prosecution” (citing authorities).

We do not deem it necessary to discuss more particularly all the bills in regard to this matter, as the above general expression will indicate to the trial court what testimony is admissible. The judgment of the civil court has no binding effect upon the criminal court, and should not be admitted.

In other bills appellant complains of questions propounded by the trial judge, and re-marles made by him during the trial of the case. We are satisfied this will not occur on another trial, and therefore do not deem it necessary to discuss the bills presenting this matter.

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

      <§^>For other cases soe same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    WORD v. STATE.
    (No. 3781.)
    (Court of Criminal Appeals of Texas.
    Nov. 3, 1915.)
    1. Criminal Daw <&wkey;589 — Continuance — Grounds.
    Denial of continuance was not erroneous where all the witnesses were present, and accused was not deprived of any testimony.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1315, 1319; Dec. Dig. &wkey; 589.]
    2. Criminal Daw <&wkey;925 — New Trial — Grounds — Misconduct of Jurors.
    That the jurors during the trial discussed accused’s conduct in walking across the courtroom in an awkward, uncouth manner during the trial, and in laughing and smiling at jurors in such a way as to call forth a discussion bj the jurors, was not ground for new trial in the absence of any showing that accused was not guilty of the conduct commented on by the jurors.
    (Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2238-2247, 2250; Dec. Dig. <@=925.]
    3. Criminal Law <&wkey;956 — New Trial — Grounds — Misconduct of Jurors.
    That a juror, after the conviction of accused, stated to his counsel that half of the jurors said that, but for facts injected into the case as to the shooting by accused of a third person, accused would have been acquitted, unaccompanied by any affidavit of accused’s counsel or of the juror, did not justify granting a new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2273-2391; Dec. Dig. &wkey; 956.]
    4. Criminal Law &wkey;>llll — Bill of Exceptions — Bystanders’ Bill.
    Where a bill of exceptions as qualified by the court and a bystander’s bill are filed, the court must consider the questions raised by the bystander’s bill.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2S94-2896; Dec. Dig. &wkey;^ 1111.]
    5. Witnesses <&wkey;376 — Cross-Examination —Direct Examination.
    Where a state’s witness testified that accused committed the crime charged, and on cross-examination accused sought to show that the witness was taking an active interest in the case, it was not reversible error for the court to permit the state on redirect examination to show that the witness was interested in the case because accused had shot the witness.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 836-839, 841, 843; Dec. Dig. <&wkey;>376.]
    6. Criminal Law <&wkey;ll66% — Remarks of Presiding Judge.
    AVhere the court, in overruling an objection to a question asked a witness, stated that the evidence to be elicited was admissible to show motive of the witness, but on the request of accused directed the jury not to consider either the question or the answer, the remark of the court was not reversible error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3114 — 3123; Dec. Dig. <&wkey;> 11661/2.]
    Appeal from District Court, Anderson County; John S. Prince, Judge.
    Hugh Word was convicted of murder, and he appeals.
    Affirmed.
    J. E. Rose, of Palestine, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was .convicted of assault to murder, and his punishment assessed at five years’ confinement in the penitentiary.

Appellant contends that the court should have continued the cause for the following reasons: Appellant was in jail, and had two criminal charges against him. Appellant’s counsel states that in a conversation with the court and the district attorney the court had stated he would call the first-numbered case for trial, and if appellant was acquitted in that case, and would make bond in the second case, it could be continued. The court says that all that was said was:

“If appellant was not convicted in the first case, .and would make bond, he would not require so strict a showing, but, if no bond was made, he would not leave him in jail untried, unless a strict showing for continuance was made.”

Appellant was acquitted of the first offense on July 1st. On the 2d of July the court states: He called this case for trial in the morning. Appellant’s counsel not being present, he had him called, and sent men to search for him. Not being able to locate appellant’s counsel, he postponed the case until 2:30 in the afternoon. At that hour he again called the case for trial, and had the jurors take a seat in the jury box. That at this time appellant’s counsel came in with a bond and asked that the case be continued. That he declined to do so unless a showing was made. All witnesses being present, and appellant not contending that he was deprived of any testimony, the court did not err in not granting a continuance.

Appellant contends that the court should have granted a new trial because his counsel alleges that after the trial Mr. Ben D. Jackson, one of the jurors, stated in his presence and hearing that some of the jurors discussed the fact “that defendant would walk across the courtroom in a very awkward, uncouth manner during the progress of the trial; that he would laugh and smile at various members of the jury in such a way as to call forth a discussion of these facts.” There is no allegation that appellant was not guilty of such conduct, and if he was guilty of it, and the jurors commented on it, it would present no ground for a new trial.

Appellant’s counsel also says that Mr. Jackson told him “that half of the jury said that, but for the facts injected into the trial relative to the shooting of Ira Swanson, defendant would have been acquitted.” Appellant’s counsel does not attach his affidavit that such an occurrence took place, nor does he attach the affidavit of Mr. Jackson. As presented to us, we cannot say the court erred in the premises.

Appellant also has a bill in the record in which he complains Ira Swanson, a witness for the state, on redirect examination, was asked the following question: “Isn’t the reason that you are interested in this case is because that Hugh Word shot you four times because you were a witness against him in this trial?” Appellant says that before he could object the witness, replied, “Yesthat appellant did then and there object and except to such question and answer, when the court remarked: “I think it admissible to show motive.” The court says he made no such remark, and, as qualified by him, would certainly present no error, but appellant, while filing the bill as qualified, also filed a bystander’s bill, and the witnesses testify that the court did make the remark, and prove up the bill as presented by appellant; consequently we must consider it

The witness Ira Swanson was one of the witnesses for the state who testified that appellant shot Mattie Word, his former wife. In cross-examination of the witness appellant had sought to show that the witness was taking an active interest in the prosecution, and was therefore calculated to be biased in his testimony; and under such circumstances, if the proceedings took place, as contended in the bystander’s bill, it would present no reversible error.

However, we will add here that, in addition to this bystander’s bill, appellant, in the record, filed the stenographer’s report, and in it appears the following:

“State: Isn’t it because you are interested in this case is that this same negro shot you four times after he shot Mattie Word? Witness: Ans. Yes. Defendant: We ásk the court to instruct the jury not to consider either the question or the answer. Court: Yes; the jury will not consider either the question or the answer just put and answered by the witness.”

It is thus seen that the question and answer were properly excluded at the time, and if the court did make the remark, and yet, when appellant’s counsel requested the exclusion of the question and answer, promptly instructed the jury not to consider either, no error is shown.

After a careful consideration of each and every question presented by the record, we are of the opinion there is nothing presented that would justify a reversal of the case.

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


text:
    MAY v. STATE.
    (No. 3726.)
    (Court of Criminal Appeals of Texas.
    Oct. 20, 1915.
    Rehearing Denied Nov. 24, 1915.)
    1. Criminal Law <&wkey;598 — Continuance — Grounds — Due Diligence.
    In a prosecution for seduction, it was not error to refuse a continuance on the grounds of absence of witnesses, where it appeared that defendant was indicted in November, 1913, arrested in February, 1915, and trial set for May, 3915, and defendant did not attempt to subpoena the absent witness until the day before his trial, since, under such circumstances, defendant failed to show that he had exercised due diligence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1335-1341; Dee. Dig. <®=> 598.]
    2. Criminal Law <&wkey;608 — Continuance — Grounds — Affidavits.
    It was not error to refuse a continuance in prosecution for seduction, where defendant failed to produce any affidavits that the absent witnesses would testify as stated in his motion.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1350, 1364-1368; Dec. Dig. &wkey;608.]
    3. Criminal Law <@^956 — Continuance — Discretion.
    Since a continuance in a criminal case is not a matter of right, but is within the sound discretion of the trial court, it w.as not error to-refuse a continuance and to overrule a motion for new trial as soon as filed, where defendant had two days after the verdict in which he could secure the affidavits of absent witnesses.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2373-2391; Dec. Dig. t&wkey;>-956.] '■
    Appeal from District Court, Callahan County; Thomas L. Blanton, Judge.
    Will P. May was convicted of seduction, and he appeals.
    Affirmed.
    Critz & Woodard, of Coleman, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was indicted, charged with seduction, and when tried was convicted, and his punishment assessed at two years’ confinement in the penitentiary.

Appellant’s counsel in Ms brief and oral argument before tMs court admitted that none of tbe bills of exception in tbe record as qualified by tbe court, present error, unless it be tbe one in wliicb be excepted to tbe action of the court in overruling bis first application for a continuance. He earnestly insists that this bill presents error, and has filed an able brief on that question alone, and if diligence was shown and an allegation that tbe witnesses would testify as stated, perhaps it would present error. But does tbe application show that diligence required under tbe law? Appellant admits be and Miss Effie Quillin bad several acts of carnal intercourse in July and August, 1912. They both fix tbe first date as July 5, 1912, and that tbe last act was perhaps tbe latter part of August, 1912, when appellant left Callahan county. By tbe testimony of both of them it is reasonably certain that he is tbe father of her baby, born May 7, 1913. Tbe grand jury of Callahan county indicted appellant November 13, 1913. Tbe sheriff of Callahan county did not locate appellant until in February, 1915, when be was arrested in Coleman county, and gave bond for bis appearance in court in Callahan county in May, 1915. WMle tbe state contends be was a fugitive from justice, appellant contends that be bad never been out of tbe state, did not know be bad been indicted until be was arrested, and was not then and bad not been avoiding arrest And it may be that bis contention is correct. But it is apparent be was arrested in February, and while be says be did not then know be was indicted, and thought that only a complaint bad been filed against him, the slightest diligence would have disclosed that an indictment bad been returned by tbe grand jury and was pending against him. In fact, tbe bond be signed would have so informed him if be bad read it. Notwithstanding be was arrested in February, be apparently made no preparation for bis trial until be went to Callahan county in May, and did not have the subpoena issued for the absent witness until tbe evening before bis case was called for trial next morning. It is true be says be was not made aware of tbe facts be expects to prove by tbe witnesses until that day, but if be bad used any diligence or effort, is it not reasonable to presume that be could have ascertained such facts earlier if be bad tried? At least tbe record does not disclose any effort on bis part to learn about such testimony or witnesses.

Again be does not pretend to have any personal knowledge that tbe witnesses would testify to tbe facts be states. He says some one informed him that tbe witnesses would so testify in a casual conversation, without giving tbe name of bis informant. Attached to bis motion for a new trial is no affidavit of tbe witnesses that they, or either of them, would so testify; no affidavit of tbe person who told him in a casual conversation they would so testify is attached, stating they would so testify. So it is made apparent that appellant did not know they would so testify, does not state they would so testify, but states specifically be merely has been so informed, in a casual conversation, without giving tbe name of his informant. This is too vague and indefinite. In fact, tbe attendance of one of the witnesses whom be says be was informed in the casual conversation would testify that tbe reputation of Miss Quillin for virtue and chastity was bad was secured, and be refused and failed to so testify, thus evidencing that the information appellant received in tbe casual conversation was not very reliable.

Appellant says tbe trial court overruled bis motion for a new trial as soon as filed, and be bad no opportunity to secure the affidavits of tbe witnesses. He had two whole days after verdict in which to file a motion for a new trial, and if be bad taken this time, if tbe witnesses were in the county, be could have secured tbe affidavits, if they would so testify, before filing bis motion. Or if be bad not tbe means to make tbe trip, be could, in bis motion, have set up that fact, and asked that process be issued for tbe witnesses, and that they be beard on tbe motion. Had be done this, doubtless tbe court would have granted such prayer, or if tbe court bad not done so, it would have shown an effort on tbe part of appellant and faith in what be bad been informed in tbe casual conversation they would testify. He did not do this, and we have no information they would so testify if a new trial was granted. Appellant does not pretend to know that they would do so, and apparently does not know tbe name of tbe person who informed him tbe witnesses would so testify, because be does not give it in bis application for a continuance, nor in tbe motion for a new trial. If there was any evidence that tbe witnesses would so testify, .there would be merit perhaps in appellant’s contention, but as tbe record presents tbe question, it is too indefinite for us to bold that tbe trial court abused Ms' discretion in overruling tbe application for continuance, and tbe motion for new trial based on that ground. A continuance is no longer, under our law, a matter of right, but is addressed to tbe sound discretion of the trial judge; and, when we are asked to review this discretion, it ought to be made apparent by tbe record that tbe witnesses would testify as alleged, or at least that appellant bad good reason to believe that they would so testify. Tbe materiality of the testimony is not questioned, for if tbe witnesses would so testify, tbe testimony would be upon a material issue in tbe case, but tbe record discloses that appellant does not know they would so testify, and is relying upon tbe statement of another person whom he casually met, and. the affidavit oí such person is not attached to the motion.

The judgment is affirmed.
      ig^oFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, J.

text:
    BRICE v. STATE.
    (No. 3784.)
    (Court of Criminal Appeals of Texas.
    Nov. 3, 1915.)
    1. Criminal Raw &wkey;>535 — Evidence — Confessions — Corpus Delicti.
    While the confession of an accused may be used where the corpus delicti is established, yet it is inadmissible to establish the corpus delicti.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 1225, 1226; Dec. Dig. &wkey;> 535.]
    2. Intoxicating Liquors <&wkey;236 — Offenses —Pursuing Business of Selling Intoxicants.
    To warrant a conviction of pursuing the business of selling intoxicating liquor in local option territory, the state must prove at least two sales.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 300-322,4 Dec. Dig. <&wkey;> 236.]
    3. Intoxicating Liquors <&wkey;236 — Offenses —Business of Selling Intoxicants in Local Option Territory.
    In a prosecution for pursuing the business of selling intoxicating liquors in local option territory, evidence held insufficient to warrant a conviction.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 300-322; Dec. Dig. <&wkey; 236.]
    Appeal from District Court, Red River County; Ben H. Denton, Judge.
    J. Brice was convicted of pursuing the occupation of selling intoxicating liquors in local option territory, and he appeals.
    Reversed and remanded.
    Travis T. Thompson, of Clarksville, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of pursuing the occupation of selling intoxicating liquors in local option territory, his punishment being assessed at two years’ con-, fmement in the penitentiary.

The indictment, after alleging the pursuing of the business, set out the names of two parties to whom sales were made, to wit, Will Williams and J. T. Kilgore. Proof is reasonably certain as to the sale to Williams. Kilgore was not produced as a witness. Appellant made a confession to the district attorney after he had testified before the grand jury.. The confession may he treated as indicating that he had sold whisky to J. T. Kilgore. It is rather indefinite. He also mentioned the names of two other parties who were not named in the indictment. This is the state’s case outside of the fact that defendant is shown to have been connected with a shipment of whisky, by one of the witnesses; that is, that he had, on the occasion when Will Williams bought the whis-ky, a paper box that would carry twelve bottles of whisky. It is not stated, however, that there were twelve bottles in it at the time that Williams bought this whisky. Williams testified that he did not see any other whisky there at the time he bought it Pie says there was a box there, but he did not see any whisky. All that he saw was a pint of whisky that he bought of defendant for which he paid 75 cents. The sheriff testified that he recovered or came in possession of some intoxicating liquors in a pasteboard box, a twelve-quart case. This was on the 31st of May, and he found this whisky or got it at the old jail wagon yard in Clarksville, and his recollection was that there were five quarts of whisky in the box, and some old whisky glasses. This witness does not connect the defendant with that pasteboard box, nor does he undertake to do so. It may or not have belonged to appellant. The confession made to Mr. Lipscomb was to the effect that appellant got a shipment of twelve quarts of whisky on 31st of May, and disposed of all but five; that he “sold Will Williams one pint of the whisky; and let J. T. Kilgore have one pint of the whisky; and Collier Hemingway got one quart of the whisky; and Rufus Davis got one quart of the whisky; ánd I sold three or four other different parties one quart each of the whisky. I didn’t know the parties to whom I sold.”

Now this confession does not aid the state particularly in its case, even if it was admissible testimony. The confession of a defendant may be used where corpus delicti is shown to connect the defendant or party making the confession with that corpus delicti, and it has been held that the confession may be used to aid in making out the corpus delicti, as in the Kugadt Case, 38 Tex. Cr. R. 694, 44 S. W. 989, and for other authorities see Branch’s Crim. Law, § 235. It has been held that the confession alone cannot prove the crime. The corpus delicti must be proved, and the confession may be used to connect the party with it. This has been thoroughly settled in a numerous line of cases in Texas. Hill v. State, 11 Tex. App. 132, is one of the earlier cases. Confession alone is insufficient to support a conviction. See Branch’s Crim. Law, § 235.

Take the confession of appellant out of the ease, and there is no testimony to show that he sold whisky to anybody except Williams. The corpus delicti in this case is not shown until evidence of a sale has been shown by somebody. The same may be said as to the other parties named in the confession. They, however, are not named in the indictment; but if they had been the state could not prove the corpus delicti or crime by the confession. There must be evidence independent of the confession. Such we understand to be tbe unbroken line of authority in Texas. The Hill Case, supra, was followed in two eases reported in 40 Tex. Cr. R. (White v. State, 40 Tex. Cr. R. 370, 50 S. W. 705, and Sullivan v. State, 40 Tex. Cr. R. 639, 51 S. W. 375); also in one case in 50 Tex. Rr. R. (Dunlap v. State, 50 Tex. Cr. R. 504, 98 S. W. 845). We therefore are of opinion the state has not made out its case. The state must prove, not only the following of the business, but must prove at least two sales, and this must be done according to the rules of evidence and law, and as a prerequisite to that it must be shown that the party was following that business, and in pursuing that business made two sales; otherwise the state has not made a case.

The facts do not justify this conviction as presented by this record, and the judgment therefore will be reversed, and the cause remanded.
      <grroFor other eases see same topic and KEY-NUMBER in ali Key-Numbered Digests and Indexes


author: DAYIDSON, J.

text:
    WELBORN v. STATE.
    (No. 3739.)
    (Court of Criminal Appeals of Texas.
    Nov. 3, 1915.)
    1. Homicide <&wkey;116 — Self-Defense.
    Where defendant shot and killed decedent when the latter attacked him, because, from his own viewpoint, he was in danger of death or serious bodily injury, he had a right to shoot until he relieved himself of the impending danger, whether other parties, friends of the decedent, had anything to do with the trouble or not, or whenever they came into the difficulty.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. §§ 158-163; Dec. Dig. &wkey;116.]
    2. Homicide <&wkey;110 — Self-Defense.
    Where defendant, in a prosecution for manslaughter, was down, and decedent and his friends were beating him, when a pistol was fired, and defendant was shot, he had the right of self-defense to shoot to defend himself from the attack of all.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. §§ 140-142; Dee. Dig. &wkey;110.]
    3. Homicide <&wkey;30O — Tbial — Instettction— Self-Defense.
    Defendant was convicted of manslaughter. His evidence tended to show that since he had been charged with killing decedent’s father some years before there had been bad blood between him and decedent, and that, when he attended a singing school, decedent, while walking by him, struck him in the face, precipitating a fight, in which decedent’s friends joined, rendering it necessary for defendant to shoot in self-defense. The state’s evidence tended, on the contrary, to show that defendant struck decedent in the face and shot him before he himself was attacked. The court charged in part that, 'if decedent and his friends had formed a conspiracy to kill defendant, or seriously injure him, and began the difficulty, or if it reasonably appeared to defendant they wore about to begin the difficulty, then defendant had the right to make the attack and kill the decedent, but that, if the decedent began the difficulty by assaulting defendant with his fist, and defendant shot Mm before any one else interfered he was guilty of manslaughter, while if friends, acting with decedent, attacked defendant, or, from his standpoint, it reasonably appeared to him that they were about to attack him, and in view of all the circumstances, including decedent’s assault, he killed decedent, he was not guilty. Defendant contended that such charge was erroneous, as limiting his right to defend Mmself against an attack of the decedent and others only if they had formed a conspiracy to injure him. He also objected that the portion of the charge relative to an assault on 'defendant by decedent with his fist deprived defendant of any right to defend himself against an unlawful attack upon him by decedent alone. Held, that such charge was erroneous as indicated.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. <&wkey;300.]
    4. Homicide &wkey;>116 — Self-Defense.
    It is defendant’s viewpoint, and not the jury’s, as they subsequently see a homicide, from which the appearance of matters, as giving defendant reasonable cause to believe- that he was in danger of injury, is to be estimated.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. §§ 158-163; Dec. Dig. &wkey;116.]
    Appeal from District Court, Houston County; John S. Prince, Judge.
    Dick Welborn was convicted of manslaughter, and he appeals.
    Reversed, and cause remanded.
    C. McClain, John I. Moore, of Crockett, and N. B. Morris, of Palestine, for appellant. O. C. McDonald, Asst. Atty. Gen., for the State.
   DAYIDSON, J.

Appellant was allotted four years in the penitentiary for manslaughter.

In a general way, without being prolix, the evidence shows that some 15 years or such matter before this unfortunate difficulty appellant was charged with killing the father of the deceased. For this he was acquitted, and on this trial he testified he did not kill the father of the deceased, Marshall English ; that he did not even have a fight with him. The theory of the state was that, appellant having been indicted for the killing of the father of Marshall English, and because perhaps he may have been guilty of that offense, he therefore wanted to kill, and did kill, Marshall English.. A Mr. Pluncket was teaching a singing school in the community where the Englishes resided, and also in the community where the defendant resided. These places were something like seven miles apart. Just before the killing Pluncket was in defendant’s community, and invited the people there generally, including the defendant and his family, to attend the singing school in the English community on a particular day, which invitation defendant and his family accepted, and attended that meeting. It seems to have been the closing exercises of that staging school. There were several members of the English family present at the time of the homicide, but were not members of either staging school, nor had they attended either. When appellant was on Ms way to the singing school, where the difficulty occurred, there is evidence tending to show that one of the English boys saw appellant and Ms family. The singing school went on without any trouble until some time after the dinner or noon hour. Everything was pleasant and quiet until about 4 o’clock or a little thereafter. The singing school adjourned. Marshall English and his friends and kinsfolk were in and about the schoolhouse, mainly dressed in their working clothes. It is shown they were about the doors and windows, and the theory of the defendant was they were locating appellant, of all of which he seems to have been ignorant. After the benediction was pronounced, and while appellant was near the rostrum, Marshall English and one of his companions entered the side door, and the difficulty immediately ensued. The evidence is in conflict as to who began this difficulty. Appellant and his witnesses say that Marshall English caught appellant by the collar and began beating him in the face, crowded him back on the rostrum, threw him to the floor, got on him, and another of the English family friends came into-the front door and shot appellant while the others, were yet on him. The state’s witnesses contend that appellant began the difficulty by striking Marshall English in the face, and that appellant shot English before anybody shot him. The contradictions and conflicts of the testimony of this case are rather peculiar. The state’s theory, in addition to what has been above stated, was that appellant was standing in the house and Marshall English, and one of his friends entered and passed near where he was, and appellant struck him; that Marshall English, the deceased, then struck him, and a fight ensued between them, in which appellant pushed English back to the rostrum, and during the trouble shot him twice, once in the leg, and once in the body. Appellant’s side of the case was that he was standing at the designated spot, when deceased and a friend entered, and deceased struck him, and the fight ensued, and that they pushed him back against the rostrum and onto it, and had' him down and were beating him; that there were four, five, or sis of the Englishes and their friends engaged in the difficulty, and Marshall English was on him. Some of the testimony goes to show that Marshall English, when shot, was standing up bending down over appellant and beating him. Appellant says in this condition that he was shot by one of them, and that he immediately got his pistol out and fired two shots rapidly. The evidence for the state controverts this, as before stated, and shows all of these people were not on him. One of the state’s witnesses, however, testified that he ran up, jerked his pistol, and struck appellant over the head once or twice as hard as he could hit him, and that the pistol, by force of the jars, was discharged, and, he supposes, struck appellant. There is a great deal of testimony as to the relative size of the parties, but it may be fairly stated that deceased was a larger man and stronger and much younger than appellant, the deceased being 25 to 28 years of age, and appellant about 50, and weighed 128 pounds, while deceased weighed considerably more.

Taking into consideration all these conflicts as to the relative size of the parties and the number of parties engaged in the difficulty at the time of the homicide, there are some facts that might be mentioned under the evidence still more .peculiar. The clothing worn by appellant — shirt and undershirt — were introduced in evidence before the jury to show the position of the holes which corresponded with the holes in appellant’s body as to where he was shot. His wife testified that she looked at him and examined him, and saw the doctor examine him. She says he was so bloody she did not recognize him at once, and did not know her husband was engaged in a difficulty until she noticed his clothing, and then she discovered the fact that it was her husband. She, with quite a lot of other witnesses, testified that the first gun fired was from the English party, and that the other shots followed from the man on the floor, who she afterwards ascertained to be her husband; that immediately upon ascertaining it was her husband she asked him what was the matter. His reply was that “ ‘Ben James and Marshall English have tried to kill me.’ I said, ‘Mercy sakes, what is the matter?’ and he said, ‘Ben James and Marshall English have tried to kill me.’ ” Ben James is the party who struck with the .pistol. She describes the wounds on appellant, and said she saw the doctor XDrobe and examine the bullet wounds; one bullet entered his chin, went through his jaw, and came out through his lip; that it came through his mouth and scorched his lip and tongue; that his tongue was burned: The other bullet entered the left side right at the waist line, and “came out by the breast.” The doctor probed for the bullet, and found that it went out that way. In further describing the wound, she said she found the hole in the shirt and in the undershirt, and the position of the holes corresponded with the holes in his body. This shirt and undershirt were introduced before the jury. She says her husband was cut across the face with a knife;, that it looked like it was nearly td the bone, and across the nose there was a knife cut. When the doctor dressed the bullet wounds, he also dressed these other wounds. He had a good many bruises on him, and it is also shown there were two scalp wounds on his head. One was closed with five stitches, and the other with three stitches. All the evidence indicates that he was very bloody when he emerged from the combat. The state introduced evidence and contended that the original fight occurred only between Marshall English and the defendant, and that Ben James and the others got into it subsequently, and disclaimed using a knife, and that after James struck appellant twice with his pistol on the head, and the pistol was discharged in this way, that .he then became engaged in a contest with the son of appellant over the pistol; so it will be observed that the testimony is very wide apart as to how this transaction occurred. If appellant was shot through the jaw and the mouth, as testified to, and in the side, he must have been shot twice; yet the bulk of this testimony shows there were but three shots fired. It is seldom the case that a record comes before this court where the evidence is so variant and conflicting by eyewitnesses as shown by this record. This much of the testimony is collated in order to bring in review the court’s charge, exceptions thereto, and special instructions requested.

There is no definition of manslaughter or murder contained in the charge of the court. The court informs th'e jury:

“The indictment embraces both murder and manslaughter.”

Then follows this charge:

“If you believe from the evidence beyond a reasonable doubt that the defendant began the difficulty with the intention of killing the deceased, he would be guilty of murder, and if you believe he began it with an intention less than to take the life of deceased, he would be guilty of manslaughter. And if you believe, beyond a reasonable doubt, that he began the difficulty, but have a doubt as to his intentions, you will give him the benefit of the doubt and convict him of manslaughter, subject to the succeeding paragraph of this charge.”

Then follows the punishment for murder and manslaughter. Then he gave what he termed in the charge “succeeding paragraph”:

“If the deceased and others had formed a conspiracy to kill the defendant, or inflict upon him serious bodily harm, and began the difficulty, or if it reasonably appeared to the defendant that they were about to begin the difficulty, then the defendant had the right to make the attack, and to shoot and kill the deceased.
“If you believe that the deceased began the difficulty by making an assault on the defendant with his fist, and that before any one else interfered in the difficulty (if they did interfere in the difficulty) the defendant shot and killed deceased, he would he guilty of manslaughter, but if others, apting with deceased, attacked defendant, or from their acts and conduct, taken in connection with the assault by deceased, and all other circumstances in this case, it reasonably appeared to the defendant, viewing from his standpoint, that others were about to attack him, and under such circumstances he shot and killed deceased, then you will acquit him.”

Th’en follows a charge on dying declaration.

Appellant asked the following special charge:

“In passing upon the issue of self-defense in this case, you must view the situation from the standpoint of the defendant alone, and from no other standpoint.”

This was given. Another special charge was asked, which we suppose was given, as follows:

“If you believe from the testimony that the defendant was shot, and that it was done accidentally, you are instructed that, if he believed it was purposely done, he would have the same benefit of the law of self-defense under the circumstances that he would have if it was done purposely.”

Another charge was given at request of appellant which is as follows:

“If deceased attacked the defendant, and was assaulting him so violently as to warrant in his mind a reasonable apprehension or fear of serious bodily harm, and, so fearing, he shot and killed the deceased to save himself from such serious bodily harm, then you will acquit the defendant, although you might find that no other person or persons were assaulting him at the time he fired the fatal shot.”

He asked another special charge, which was refused, as follows:

“The defendant’s perfect right of self-defense does not depend upon an actual conspiracy on the part of the deceased and others to inflict upon him serious bodily harm, but if he believed at the time that he was in danger of serious bodily harm from any one or more, viewing-the case from his standpoint, as it appeared to him at the time, then he would have a right to anticipate such attack and act in his own defense, and, if he did so, and in the difficulty ensuing killed the deceased, or if you have a reasonable doubt thereof, then you will acquit him.”

One objection to th'e charge at the tíme it was given, before being read to the jury, was to that part of the charge quoted above which is denominated in the previous portion of this opinion as the “succeeding paragraph.” The objection was that it limits the defendant’s right to defend himself against an attack of the deceased and others if they had formed a conspiracy to kill or inflict serious bodily harm upon him, because said charge limits the defendant’s right of self-defense to an attack not by the deceased alone, but by the deceased and others, and that, too, after they had formed a conspiracy to do serious bodily harm to him or kill him, whereas under the law he would have the right to defend himself against the deceased or against the deceased and others whether they had formed a conspiracy to injure him or not, and because said charge limits his right of self-defense under the circumstances of this case. He also objected to that portion of the charge which instructed the jury, as already heretofore set out, “If you believe that the deceased began the difficulty by making an assault on the defendant with his fist, and that before any one else interfered in the difficulty,” etc., he would be guilty of manslaughter, but if others, acting with deceased, attacked defendant, or from their acts and conduct, taken in connection with the assault by deceased, and all other circumstances in this case, it reasonably appeared to defendant, viewing from his standpoint, that others were about to attack him, then they would acquit. The objection urged to this charge was that it deprived defendant of any right to defend himself against an unlawful attack upon him by the deceased alone, while the evidence tended to show, and which would have been sustained as a fact, that the defendant was at the time of the difficulty over 50 years of age, and weighed about 128 pounds, whereas the deceased was-shown to have been, at that time a robust, athletic young man about 28 years old, weighing about 155 to 160 pounds, and therefore able to inflict upon defendant serious bodily harm without the use of any weapons, and defendant contends that he should have the perfect right of self-defense against said deceased without being, limited. The court qualifies this by stating that:

“Tho defendant was 49 years old, and weighed 128 pounds; that deceased was 28 years old, and weighed 150 or 160 pounds, was delicate, weak, and ‘weasley,’ but could walk without a stick or crutch. There was no proof that deceased was a. man of superior strength to defendant.”

He further qualifies it by stating that:

“The state’s evidence showed that defendant and deceased were both on their feet, standing up, when the two fatal shots were fired; that defendant had- been attacked by deceased and others beating him; also that still another had shot him; and that he then fired in self-defense, So there was no middle ground. Besides, this paragraph complained of was expressly modified by defendant’s special charge No. 1.”

There was another charge given by the court with reference to the deceased striking appellant with his fist, which is qualified by the judge in the same way. This charge informed the jury that, if the deceased began the difficulty by striking defendant with bis fist, and that before any one else interfered in the difficulty the defendant shot and killed deceased, he would be guilty of manslaughter, but if others, acting with deceased, attacked defendant, or from their acts and conduct, taken in connection with the assault by deceased, and all other circumstances in the case, it reasonably appeared to the defendant, viewing it from his standpoint, that others were about -to attack him, and under such circumstances he shot and killed deceased, he would not he guilty.

On account of the peculiar construction and wording of the charge given by the court, it has been deemed necessary to make a more detailed statement of these charges given and refused than would otherwise be required. It will be noticed that the first charge starts out upon the assumption that the defendant struck the deceased first; that, if defendant did it for the purpose of provoking a difficulty to kill, he would be guilty of murder; if not to kill, he would be guilty of manslaughter. There is no definition given of murder or manslaughter. So the remainder of the charge seems to be a confused statement, and not a clear enunciation of law as to the rights of the defendant if he killed the deceased Marshall English because be thought his life was in danger, or Ms body of serious bodily harm, independent of the acts of others. Nor is the charge clear as to the relation of the conspiracy phase of it to defendant’s right. As has been heretofore noticed, it would be difficult to imagine a state of facts more confused and more in conflict than this record shows. Appellant’s theory was that he was standing quietly smoking, and in this he is borne out by much of the testimony, when deceased, Marshall English, apprqached him, or in passing by him struck him on the face, and some witnesses say on the neck. This brought about the difficulty. Marshall English, being somewhat stronger, more vigorous, and much younger, and having advantage of appellant, got him down on the floor and was beating him, and wMle in this condition there was a pistol fired, and appellant says he immediately fired two shots. If appellant killed the deceased, Marshall English, because, from his viewpoint of it, his life was in danger or his body of serious bodily injury, be had a right to shoot, and to shoot until he relieved himself of impending danger, whether the other parties had anything to do with the trouble or not, or when they came into the difficulty. But, be that as it may, he had a right to have tMs question of self-defense presented to the jury, from the acts and conduct and relation of himself to the deceased, and the deceased’s relation to him from that standpoint. There is testimony also that enhances his views and may have impressed itself upon defendant’s idea of environment that these parties were there to have trouble, and that Marshall English, the deceased, and others went in to bring it on, and the others to join in later, if necessary. If, anticipating this, he killed English before the others came into it, while he was in danger of serious bodily injury, he would have the perfect right of self-defense from this standpoint. If, as another phase of the testimony shows*- while he was down, and they were beating him, a pistol fired, and he was shot, certainly he had the perfect right of self-defense from the attack of more than one. It was not definitely so charged to the jury, and his right of self-defense was limited in this respect. It is true if he killed to resist the acts of the conspirators, he would not be guilty, but defendant had a right to resist all danger of his life or serious bodily injury from the standpoint of English’s attack under the circumstances of this ease. He had a right to view it in the light of a conspiracy, and that Marshall English was to bring it on, and he had a right to kill him before all conspiring parties attacked him. His right of self-defense would be perfect if he was attacked by more than one of these parties under the circumstances already detailed. These matters were not submitted to the jury> as they should have been.

The. charge is not clear again as it might be with reference to defendant’s attitude, viewed from his standpoint of the case. The keynote and controlling thought and central point in the question of self-defense is to be viewed from the standpoint of the defendant, not as the other side viewed it, but as defendant viewed it. Again, it is his viewpoint of it, and not the viewpoint of the jury as they see it subsequent to tbe homicide. Defendant has a right to have his side submitted as he viewed it at the time of the transaction. He could not look at the transaction in the light of what might occur afterwards, nor could he look at it in any light of prior occurrences, unless those prior occurrences were in some way brought to his attention directly or indirectly. These are general and usually correctly stated rules. It is unnecessary to go over this case further. Enough has been said to indicate that the defendant must have the law applied to the facts of his case, and the jury must be given a true and correct criterion by which to decide his rights and his connection with these matters.

The judgment is reversed, and the cause remanded.
      (g^For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    ARNOLD v. STATE.
    (No. 3669.)
    (Court of Criminal Appeals of Texas.
    Oct. 20, 1915.
    Rehearing Denied Nov. 17,1915.)
    1. Witnesses <&wkey;337 — Accused as Witness —Impeachment—Previous Chakoes — Evidence.
    In a prosecution for swindling, in which defendant testified on her own behalf, it was proper on cross-examination to question accused as to previous charges of swindling against her.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1113,1129-1132, 1140-1142,1146-1148; Dee. Dig. &wkey;337.]
    2. Criminal Law &wkey;>372 — Swindling—Similar Transactions — Evidence.
    Where, in a prosecution against the operator of an employment agency for swindling, accused swore that she did not intend to swindle the prosecuting witness in the transaction with him, or any other persons with whom she had contracts to secure employment, the state could prove similar transactions with other parties about the same time which tended to show the intent of accused and her system of operating.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 833, 834; Dec. Dig. <&wkey;> 372.]
    3. Criminal Law &wkey;j447. — Swindling—Contract — Merger—Evidence.
    The written contract whereby accused undertook to secure employment for the prosecuting witness on certain terms did not merge accused’s representations thereunder so as to prevent the state from going behind the contract and showing the true facts.
    [Ed. Note. — For other cases,_ see Criminal Law, Cent.Dig. §§ 1629-1031; Dec.Dig. <&wkey;447.]
    4. False Pretenses <&wkey;49 — Evidence—Sufficiency.
    In a prosecution for swindling against the operator of an employment agency, evidence held sufficient to support a. conviction.
    [Ed. Note. — For other cases, see False Pretenses, Cent. Dig. § 62; Dee. Dig. <&wkey;49.]
    Appeal from Tarrant County Court; Jesse M. Brown, Judge.
    Mrs. Pete Arnold was convicted of' swindling, and she appeals.
    Affirmed.
    Mays & Mays and John L. Poulter, both of Ft. Worth, for appellant. C. C. McDonald, Asst. Atty Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of swindling J. J. Brown, and her punishment assessed at a fine of $300 and six months in jail.

We will give a summary of what the evidence, though contradictory in some respects, was amply sufficient to establish: On April 20, 1915, and before and after that, she was engaged in running an employment agency in Ft. Worth, and so advertised in the paper. Said Brown was a young man engaged in running dairies and feeding cattle, and was at the time feeding cattle at Corsicana. He saw her advertisement, and called and talked to her over long-distance phone, and told her his qualifications and experience and the position he wanted. She told him she had the very position he wanted waiting for him; that it was as manager of a large farm and dairy. They then agreed that he should go to Ft. Worth and see her about it the next day, which he did. She then repeated her representations to him, and again told him the job was waiting for him, and that the place was managing the farm and dairy where they were milking about 65 dairy cows and had about 1,500 acres planted in wheat; that the position would pay him about $80 per month salary, and he would be furnished a house free. He asked her the name of the party and the location. She refused to divulge this to him until he should pay her $10 in advance and sign one of her printed contracts. He told her that he could then pay her but $5; that he had to have a little money left; and that he would pay her the other $5 when he got the position. He then paid her $5, signed one of her printed contracts, and asked her again who the person was who was going to employ him at the salary and terms and for the purpose she had represented. She then told him it was Mr. R. E. Smith at Sherman. She then showed him a letter from said Smith to her, but she had torn off the place and date of the letter. It had been written nearly a year before. At her instance he then read it, and saw from it that Mr. Smith had no such place as she had represented; she insisting that he had. He then declined to go to Sherman and see Smith without she should further communicate with him over the phone and know that he had the position for him that she represented he had. She phoned Smith and had a talk with him over the long-distance phone. In effect, Smith told her that he had no such position. Brown, after waiting a sufficient time for her to so communicate with Smith, went to see her again, and she told him that she had talked to Smith, and, in substance, Smith told her that he had such position, and for him to come on. He immediately went to see Smith at Sherman. Smith told him, and swore on this trial, that he had no dairy, and never had run a dairy; that he at that time milked only 6 or 7 cows for his own use, and that was a greater number than he had ever milked before; that he wanted no one to manage his farm; he managed it himself, and declined to employ Brown for any such position as she had represented to him Smith then had for him. Brown was then out of money, and had to go to work there to raise sufficient funds to return to Ft. Worth, which he did, working for Smith at $1.75 a day sawing cord wood with a bunch of negroes. He had to support himself out of the $1.75 a day. He worked six days, got his money from Smith, and returned to Ft. Worth and demanded his money back, telling her what he had found out and done with Smith. She refused to repay him his money. He then prosecuted her first for the theft of the money. This court held that it did not amount to theft, but the offense might be swindling. 176 S. W. 159. Thereupon she was prosecuted in this case. The testimony authorized the Jury to believe, and by their verdict they, in effect, did believe, that all of her said representations to Brown in order to get his money were false and known by her and not by him, to be so at the time and that he relied upon them, and was thereby induced to pay her his •money, which she refused to refund.

She testified on the trial. On cross-examination, for the purpose of impeaching her, the court permitted the state, to ask her, and she answered, that she had theretofore been charged with swindling in 10 or 15 cases. Swindling is certainly an offense showing moral turpitude. This evidence was admissible, as has uniformly been held by this court in a large number of cases. Mr. Branch, in his Criminal Law (section 868), so states the rules to be, and collates a considerable number of cases to that effect.

She swore that she did not intend to swindle Brown in the transaction she had with him, and that she did not intend to swindle any other person with whom she had made like contracts under substantially the same kind of representations she had made to Brown. Therefore the question of her intent in this transaction and her system in like transactions was material. The court therefore did not err in permitting the state to prove over her objections several other like transactions she had with different parties about the same time she had this transaction with Brown; for such testimony clearly tended to show what her intent was and the system she used in such transactions. This has been so uniformly decided in this state —and the text-books are all to the same effect—that it seems useless to again cite the authorities, but see Branch’s Criminal Law, % 338, where he collates a large number of cases.

The only other question appellant presents is her claim that the evidence is insufficient to sustain the verdict. Her contention and that of her attorneys on the trial and in the lower court was, in substance, that the printed contract which she had Brown to sign at the time he paid her his money, in effect, merged all of her representations therein, and that the effect of 'the contract was that she did not represent to Brown that Smith would employ him to do the work and at the salary she had stated to him, but that it authorized her, within 30 days if Smith did not give him that position, to get him some other employment of a different or the same kind. We do not so understand the contract, nor that the state nor Brown would be conclusively bound thereby, and not permitted to show the true facts of the transaction. She herself, on cross-examination, testified that she wrote in the body of said contract, and herself signed it, thus:

“It is agreed and understood that in the event this position is not accepted the money is returned.”

And she testified that that was intended to .vary the 30 days stipulation contained in the printed form, and that she meant to return Brown his money if he did not accept the position. Taking the printed signed contract and all the testimony together, it amply shows that she made the said representations in effect as Brown had testified she made them, and got his money on the faith that he would get the position from Smith she told him was waiting for him at the salary she represented, and a house free, and that, if he did not get that identical contract which she said Smith would make with him, he was then, and not in some other contingency, to get his money back. It is certain that he did not get the position; that Smith had no such position at all, nor at the salary she represented he would get.

Her attorney who represented her in this court, but who did not in the court below, now contends that the evidence is insufficient to sustain the verdict on the additional ground, not made in the court below, and for the first time made in this court, to the effect that Brown did not testify: he believed her said representations to be true, and that he relied upon them in parting with the title to his money when he paid it to her. It is true that Brown, in his testimony, did not use that specific language, but, taking his testimony as a whole and his acts, there can be no question, and the jury was clearly authorized to believe, that Brown did believe her said false representations and relied upon them, and paid her his money, based solely on his reliance upon her said representations, which the jury was authorized to believe from the testimony were false. After a careful study of the evidence, we think that it was amply sufficient for the jury to believe therefrom all the essential facts to authorize her conviction. The court so required the jury to believe before they could convict her.

The judgment will be affirmed.
      &wkey;»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    GRAGARA v. STATE.
    (No. 3795.)
    (Court of Criminal Appeals of Texas.
    Nov. 3, 1915.)
    Cbiminal Law <&wkey;1090 — Questions Reviewable— SUFFICIENCY OF* EVIDENCE — STATEMENT of Facts — Bill of Exceptions.
    The sufficiency of the evidence cannot he reviewed in the absence of a statement of facts or bill of exceptions.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. <&wkey;>1090.]
    Appeal from Ellis County Court; W. M. Tidwell, Judge.
    Gragara, a Mexican, was convicted of gaming, and he appeals.
    Affirmed.
    0. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of gaming, his punishment being assessed at a fine of $10.

This case is before us without a statement of facts or bill of exceptions. The allegation that the evidence is not sufficient, therefore, cannot be reviewed.

The judgment is affirmed.


text:
    BESENTA v. STATE.
    (No. 3793.)
    (Court of Criminal Appeals of Texas.
    Nov. 3, 1915.)
    Criminal Law &wkey;>1124 — Presentation fob Review — Sufficiency of Evidence.
    Where there was no bill of exceptions or statement of facts, and the motion for new trial, based on insufficiency of the evidence to support the conviction, was not signed by defendant or his attorney, and there was no verification by the trial judge of the testimony set out in the motion as being that adduced on the trial, nothing was presented for review..
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2939, 2946-2948; Dec. Dig. &wkey;1124.]
    Appeal from Ellis County Court; W. M. Tidwell, Judge.
    Besenta, a Mexican, was convicted of gaming, arid appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of gaming, his punishment being assessed at a fine of $10.

There is no bill of exceptions or statement of facts in the record, therefore the case will be disposed of without reference to those matters. The motion for new trial is based on the insufficiency of the evidence to support the conviction, and there is also set out in the motion for new trial some questions and answers of the witness. But there is no verification of this testimony by the trial judge as being the facts adduced upon the trial, and in fact the motion for new trial is not signed by the defendant or his attorneys. As this matter is presented, there is nothing for this court to review, and the judgment will be affirmed.


text:
    AUGUSTINE v. STATE.
    (No. 3794.)
    (Court of Criminal Appeals of Texas.
    Nov. 3, 1915.)
    Criminal Law' &wkey;>1097 — Appeal and Error — Record on Appeal — Review of Evidence.
    The contention of appellant that evidence fails to support the conviction cannot be reviewed in the absence of a statement of facts.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2862, 2864, 2926, 2934, 2938, 2939, 2941, 2942, 2947; Dec. Dig. &wkey;1097.]
    Appeal from Ellis County Court; W. M. Tidwell, Judge.
    Augustine, a Mexican, was convicted of gaming, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of gaming, his punishment being assessed at a fine of $10.

The record is before us without bills of exception or statement of facts. The conten, tion of appellant that the evidence fails to support the conviction cannot be reviewed in the absence of the statement of facts.

The judgment therefore will be affirmed.


text:
    RIDGEWAY v. STATE.
    (No. 3822.)
    (Court of Criminal Appeals of Texas.
    Nov. 10, 1915.)
    1. Criminal Law &wkey;>1092, 1099 — Appeal-Bills of Exception and Statement of Facts — Time for Filing.
    A bill of exceptions and a statement of facts, filed more than 20 days after the adjournment of court, could not be considered, as they must be filed within 20 days, or some reason shown why this was not done which would relieve appellant of negligence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2866-2880, 2919; Dec. Dig. &wkey;1092, 1099.]
    2. Criminal Law <&wkey;1090 — Appeal—Record —Matters Presented for Review.
    Where no bill of exceptions or statement of facts was filed within 20 days after the adjournment of court, an allegation in the motion for a new trial as to the insufficiency of the evidence could not be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825, 2827, 2927, 2928, 2948, 3204; Dec. Dig. &wkey; 1090.] '
    Appeal from Tarrant County Court; Jesse M. Brown, Judge.
    Tom Ridgeway was convicted of unlawfully selling intoxicating liquors and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of unlawfully selling intoxicating liquors, his punishment being assessed at a fine of $100 and two months’ imprisonment in the county jail.

Court adjourned on September 5th. The only bill of exception in the record was filed on Seirtember 29th, as was the statement of facts. These matters cannot be considered. They must be filed within 20 days, or some reason shown why it was not done which would relieve the appellant of negligence. The allegation in the motion for new trial of the insufficiency of the evidence, therefore, cannot be considered.

The judgment will be affirmed.
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