author: KEY, C. J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. TEXAS PACKING CO.
    (No. 5323.)
    (Court of Civil Appeals of Texas. Austin.
    March 25, 1914.
    Rehearing Denied June 3, 1914.)
    1. Carriers (§ 134) — Action for Injury to Goods — Sufficiency of Evidence.
    In an action by a shipper against a carrier for damages to a shipment of dressed turkeys, comprising three classes, varying in value, evidence held sufficient to support the verdict, though there was no evidence as to what class the spoiled turkeys belonged, where the verdict was less than the loss, in whatever class the turkeys belonged.
    [Ed. Note. — Eor other eases, see Carriers, Cent. Dig. §§ 588-592, 607; Dec. Dig. § 134.]
    2. Carriers (§ 117) — Action for Injury to Goods — Defenses.
    Where a contract of carriage contained an absolute and unconditional stipulation requiring the carrier to re-ice the cars at every icing station, the carrier could not excuse noncompliance therewith because its employés in charge did not consider re-icing necessary.
    . TBld. Note. — For other cases, see Carriers, Cent. Dig. §§ 508-516; Dec. Dig. § 117.]
    Appeal from District Court, McLennan County; Tom L. McCullough, Judge.

      Action by the Texas Packing Company, against the Missouri, Kansas &' Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    W. W. Ñaman and Spell & Sanford, all of Waco, for appellant. Sleeper, Boynton & Kendall, of Waco, for appellee.

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

   KEY, C. J.

Appellee sued appellant and recovered a verdict and judgment for $2,-764.66, with interest thereon, as damages for failure on appellant’s part to properly ice a ear load shipment of poultry from Waco, Tex., to Chicago, Ill., and the case is now before this court for review.

The first assignment of error complains of the action of the trial court in not giving a reguested instruction directing the jury to return a verdict for the defendant; and appellant presents several other assignments under which it is contended that the verdict of the jury is without support in the testimony. The contract -of shipment, in so far as applicable to the facts, stipulated that, in case of loss or damage for which the carrier was liable, the amount thereof was to be computed on a basis of the bona fide invoice price at the time and place of shipment, and it was alleged by both parties and shown by uncontroverted testimony that the amount referred to was $5,290.80. The entire shipment consisted of dressed turkeys, and comprised three classes, being based upon value at Waco, Tex. There were 25,-898 pounds worth 19% cents per pound, making $5,050.11; 1,031 pounds worth 15 cents per pound, making $154.65; and 717 pounds worth 12 cents per pound, making $86.04. The proof shows that, when the shipment reached its destination, 10,814 pounds thereof had - so deteriorated as to render it worthless, and that, after its condemnation by the official inspector, it was delivered to the proper authorities and carried away to be destroyed; and it is for the loss referred to and injury to the balance that appellee recovered the judgment complained of.

It is insisted on behalf of appellant that the judgment should be reversed because the testimony does not show how much of each class of the shipment was embraced in the 10,814 pounds that was damaged and lost. There is no merit in that contention. Over 90 per cent, of the shipment Was of the first class or highest grade; and, if it be conceded that all that belonged to the other two grades was embraced in the amount lost, they constituted only 1,788 pounds of the value of $240.69. The remaining 9,066 pounds of the 10,814 that were a total loss would belong to the first class, be of the invoice value of 19% cents per pound, - making a total of $1,767.84, which, added to the $240.69, makes a total of $2,008.53, and accounts for that much of the verdict. The total weight of the shipment was 27,646 pounds, and, after deducting the 10,814 pounds that was a total loss, there was 16,-832 pounds, which the proof shows was so-damaged as that it sold on the market in Chicago at from 8 to 14 cents per pound.. Now, while the testimony indicates that the remaining 16,832 pounds were ■ damaged more than 5 cents per pound, yet, if it be calculated oh that basis, it would be over $800, which, added to the $2,008.53, would make an amount in excess of the verdict.

It is also contended on behalf of appellant that the testimony does not support a finding that the contract of shipment was breached. We overrule that contention, because it was stipulated therein that appellant was to re-ice the car with crushed ice at all regular icing stations, using 12 per cent.' salt. The proof shows that that important stipulation in the contract was breached, and that the car was not re-iced at Denison and some other regular icing stations. Appellant could not excuse itself for not complying with that obligation of the contract because of the fact that its agents and employés in charge of that part of its business did not consider that such re-icing was necessary. The contract to re-ice was not conditional upon the existence of a necessity to be determined by appellant’s employés. It was an absolute and unconditional stipulation; and while if no necessity for re-icing had existed, and no damage had resulted, appellee would have had no substantial cause of action, it would not have been because there was no breach of the contract, but on account of the fact that no injury had resulted from such breach.

, There was also testimony which justified, the jury in finding that the shipment had been re-iced with block ice and not with crushed ice, as required by the contract,which fact of itself would have constituted a breach of the contract, and might have caused some, if not all, of the damage.

Several assignments of error are addressed to the action of the court in giving and refusing instructions, which assignments we do not care to discuss in detail. They have all been considered and are overruled.

We are disposed to agree with appellant’s contention that it was error for the court to submit to the jury whether or not re-icing was necessary for the preservation of the property; but that error was in favor of appellant and affords it no ground of complaint. The other objections to the charge are untenable.

We also overrule all of the assignments which complain of rulings made with reference to the admissibility of testimony. We think the witness Bessonette qualified as an expert, and, if his testimony was not admissible in explanation of the report of the inspector, no objection was made by appellant to the same testimony given by the inspector himself; and besides no harm was done, because tbe report shows on its face that it means just what tbe witnesses stated.

No reversible error has been shown, and the judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: BRENDERGAST, B. J.

license: Public Domain

text:
    WALKER v. STATE.
    (No. 3131.)
    (Court of Criminal Appeals of Texas.
    May 20, 1914.
    Rehearing Denied June 10, 1914.)
    1. Criminal Law (§ 1159) — Appeal—Review —Questions of Fact.
    A conviction could not be reversed because of insufficiency of the evidence,' where there was sufficient evidence to support it, though it was circumstantial and there was evidence to the contrary.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 3074-3083; Dec. Dig. 1159.]
    2. Criminal Law (§ 427) — Evidence;—Declarations of Co-Conspirator.
    Declarations of a co-conspirator during accused’s absence, in furtherance of a conspiracy that accused should burn the co-conspirator’s house for the insurance, were admissible under an instruction that they could only be considered if the conspiracy was proven beyond a reasonable doubt.
    [Ed. Note. — For other cases, see Criminal Law,^ Cent. Dig. §§ 1012-1017; Dec. Dig. § 427.]
    Appeal from District Court, Joues County; Tno. B. Thomas, Judge.
    Raul Walter was convicted of arson, and he appeals.
    Affirmed.
    S. W. Bishop, of. Gorman, Brooks & Brooks, of Anson, and Alexander, Bower & Ridgway, of Ft. Worth, for appellant C. E. Lane, Asst. Atty. Gen., for the State.

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

   BRENDERGAST, B. J.

Appellant was convicted for arson, in that he willfully burned the house of C. E. Thomason, which was insured against loss or damage by fire, and the jury assessed the lowest punishment. This is the same house for which said C. E. Thomason was convicted as an accomplice to arson, appealed, and affirmed by this court, reported in 160 S. W. 359.

The statement of facts is quite voluminous, containing more than 150 typewritten pages. The evidence as to appellant’s guilt was wholly circumstantial. We have carefully read and studied the evidence in this case more than once. One of appellant’s defenses was that the house was struck by lightning, and fired, and burned thereby. There was some evidence which the jury might consider as tending to show this. On the other hand, the circumstances and the testimony as a whole tend to exclude this idea, and to show with all reasonable certainty that appellant himself set fire to and burned said house. The evidence was clearly sufficient on this point to justify the jury to find the verdict it did. The state’s contention was that appellant burned the house at the instance of said Thomason, because he had it insured, and to enable him to get the insurance thereon. Appellant not only denied that he burned the house, but also denied that Th'omason had him do so. The evidence was sufficient to authorize the jury to find, as it did, that hei set fire to and burned the house at Thomason’s instance, and to enable Thomason to collect the insurance thereon. Convictions for such offenses must always be made, or in most cases, wholly by circumstantial evidence. Under the law we would, not be authorized nor justified in reversing this ease because of the claimed insufficiency of the evidence. We can see no useful purpose in detailing the testimony of the various witnesses, and of the many circumstances tending to show, and satisfactorily showing, that the evidence was sufficient to sustain the verdict.

There was evidence introduced of what said Thomason had done and said tending to show that he had appellant burn the house for his benefit. The court on this point instructed the jury that if appellant and Thomason conspired together or agreed between themselves that appellant was to burn said house, and in pursuance thereof appellant did burn it, then any act or declaration of Thomaspn, in appellant’s absence, shown by the evidence in furtherance of said common purpose and design, might be considered by the jury for what weight, if any, they saw fit to give it in arriving at their verdict; but if the evidence failed to satisfy them beyond a reasonable doubt that such agreement or conspiracy existed, then such acts or declarations of Thomason would not, in the absence of appellant, be admissible against him, and they would give no consideration whatever to, but wholly disregard, such evidence in finding their verdict. This charge was in favor of appellant, and not against him, or at any rate authorized by the evidence. The court gave a full and correct charge on circumstantial evidence, as to which there is no complaint. He required the jury to believe, beyond a reasonable doubt, every essential fact to show appellant’s guilt before they could convict him, and, in addition, told the jury that in no event could they convict him, unless they believed from the evidence beyond a reasonable doubt that he willfully set fire to and burned said house, and still, in addition, that he was presumed to be innocent until his guilt was established by legal and- competent evidence beyond a reasonable doubt, and if they had a reasonable doubt as to his guilt to find him not guilty. Again, the court specifically instructed the jury that if said house burned was set fire by lightning, or through accident, neglect, or by any other means than through the willful act of appellant, or if they had a reasonable doubt of it, to acquit him. We think appellant’s rights were protected in every way, that he has had a fair and impartial trial, and his guilt has been established by competent and legal evidence, and that the court has committed no error in the trial. The judgment will therefore he affirmed.


author: HARPER, J.

text:
    BALLARD v. STATE.
    (No. 3086.)
    (Court of Criminal Appeals of Texas.
    April 8, 1914.
    On Motion for Rehearing, May 6, 1914.
    Rehearing Denied June 3, 1914.)
    On Motion for Rehearing.
    1. Weapons (§ 13) — Carrying Weapons— Pebsons Exempt from Prosecution.
    It is no defense to a prosecution for unlawfully carrying a pistol that the defendant armed himself for the purpose of hunting another who had had adulterous relations with his wife in order to seek an explanation from him, even though that fact was such provocation as would reduce a homicide at their first meeting to murder, since it is not made one of the exceptions by the statute prohibiting the unlawful carrying of pistols, and the court cannot add another exception to those enumerated.
    [Ed. Note. — For other cases, see Weapons, Cent. Dig. §§ 16, 17;' Dec. Dig. § 13.]
    2. Weapons (§ 13) — Carrying Weapons— Persons Exempt prom Prosecution.
    Nor does the fact that the other had made threats to kill defendant under certain circumstances justify defendant’s act in arming himself and going into another county to seek the other.
    [Ed. Note — For other cases, see Weapons, Cent. Dig. §§ 16, 17; Dec. Dig. § 13.]
    3. Weapons (§ 11) — Carrying Weapons— Persons Exempt — “Travelers.”
    One who goes from a point in one county to a point in another is a “traveler” within the meaning of the law, which allows a traveler to carry arms; but after he arrives at his destination, secures a room, and remains there all night, he ceased to be a traveler, and, if he carries his pistol next morning while going around the town, he is guilty of unlawfully carrying it.
    [Ed. Note. — For other cases, see Weapons, Cent. Dig. §§ 10-14; Dec. Dig. § 11. .
    For other definitions, see Words and Phrases, vol. 8, p. 7820.]
    Appeal from Nacogdoches County Court; Geo. F. Ingraham, Judge.
    Dan Ballard was convicted of unlawfully carrying a pistol, and he appeals.
    Appeal dismissed, but reinstated on rehearing, and judgment affirmed.
    V. E. Middlebrook, of Nacogdoches, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was convicted of unlawfully carrying a pistol, and undertakes to prosecute an appeal to this court, but the recognizance is insufficient in law to confer jurisdiction on this court; therefore the appeal is dismissed. Bigelow v. State, 36 Tex. Cr. R. 402, 37 S. W. 330.

The appeal is dismissed.

On Motion for Rehearing.

Since the dismissal of this case, appellant has filed a proper recognizance, and appellant is entitled to have the case considered on its merits, and the order of dismissal is therefore set aside, and the cause reinstated.

In the first bill of exception it is contended that appellant had the right to arm himself with a pistol and hunt a person who had had adulterous relations with his wife to meet and resist whatever might arise when ■he found deceased and demanded an explanation of his conduct. While adulterous relations with one’s wife will reduce an offense to manslaughter, if the killing takes place on the first meeting, yet such conduct does not justify one in carrying a pistol on and about his person. This is not one of the exceptions enumerated by the statute, and the court has no authority to ingraft others therein. The fact that deceased had made threats to kill appellant under certain conditions would not authorize appellant to arm himself and to go into another county in search of him. If he does do so, he is guilty of unlawfully carrying the pistol. When he finds deceased, the facts and circumstances arising at the time may justify the homicide; but it does not excuse nor justify the carrying of the pistol.

It is true that one who leaves San Augustine and travels to Teneha, in other county, would be a traveler, and he could carry a pistol while engaged on such a trip. But when he arrived at his destination, and put up at a house, there he should leave his pistol, and if he does not do so, but keeps it on his person while knocking about the town and hunting for another person, he violates the law. When the evidence shows that he went to bed after arriving at the end of his journey, gets up next morning, puts on his pistol, and goes in search of Miller, he was guilty of carrying a pistol.

The judgment is affirmed.


author: DAVIDSON, J.

text:
    BAKER v. STATE.
    (No. 3029.)
    (Court of Criminal Appeals of Texas.
    April 8, 1914.
    Rehearing Denied June 3, 1914.)
    1. Intoxicating Liquors (§ 50) — Sale—Local Option Territory.
    A bona fide club dispensing liquors, to its membership is not within the law requiring a license to follow the business of selling liquors.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig: § 51; Dec. Dig. § 50.]
    2. Intoxicating Liquors (§ 146) — Wrongful Sale — Clubs.
    Defendant was president and treasurer of an alleged club having by-laws and regulations, in addition to a charter, providing that applications for membership must be recommended by members and be acted on by the board of directors. An applicant for membership, however, after having filed his application was immediately entitled to the buffet purchase privileges. There were several hundred members, and it was shown that many of these were recommended by defendant and by O., who was not a member, and that the directors other than defendant and the secretary voted by proxy. There was a saloon operated on the same grounds by another party, and many people came from a nearby city to the club grounds where dances, which were attended by immoral persons, were carried on until 3 o’clock in the morning. Held, that the club was not bona fide, but a mere pretense for the sale of liquor, and that defendant was therefore properly convicted of selling liquor as a retail dealer without a license.
    [Ed. Note — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 159, 160, 163; Dec. Dig. I 146.]
    Appeal from Harris County Court at Daw; C. C. Wren, Judge.
    Hance Baker was convicted of selling intoxicating liquors without a license in local option territory, and he appeals.
    Affirmed.
    Woods & Harris, of Houston, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, J.

Appellant was convicted of selling intoxicating liquors in quantities of less than one gallon without having procured a license as a retail liquor dealer in territory that was not under the operation of the local option law.

The facts, in brief, show that there was a club formed known as the Sylvan Beach Hunting, Fishing & Boating Association; that this club was located at La Ports. Subsequently they removed or organized a subordinate department near the city of Houston. Appellant was the president and treasurer, and Schultze was secretary. They had by-laws and regulations, in addition to their charter, providing how membership might be obtained; it also provided for buffet accommodations for the exclusive use of the membership. It was further shown that there were several hundred members of the club, and that they became such by application in writing; the by-laws requiring that members of the club should recommend such applications. It is also shown that, when a party applied for membership, he immediately became entitled to the privileges of the club, at least the purchase privileges of the club, before his application had been acted upon by the board of directors. Appellant, as president, had charge and practically exclusive charge of all matters belonging to the club, including ground, houses, and other matters, and that he dispensed beer to the members and applicants for membership upon their demand, and to applicants before their applications had been approved by the board of directors. It is also shown that a party named Outrans, who was not a member of the club, and appellant usually recommended these applications for membership. It is further shown that some of the applicants were never registered as members. The evidence discloses that there was a saloon run on the same grounds by another party, and that quite a lot of people would come from the city of Houston to the club grounds; that some of them were respectable people, and perhaps the majority of those who came were; that prostitutes also came with their friends; that there was a dance hall; and the business became more flourishing after 9:30 in the evening. Outrans was not a member of the club, and under the rules was not authorized to sign for or indorse the application for membership. There was a great deal of beer sold, and the parties danced and had music; and all that sort of entertainment was carried on, often until 3 o’clock in the morning. Beer was also dispensed on Sunday. It seems that the original board of directors, upon ascertaining the condition of things, resigned, and other members were substituted as directors. The 'meeting of the board of directors seems to have been confined to appellant as president and treasurer, and Schultze as secretary. The minutes of the meeting show this, and that the other members of the board appeared by proxy. A great deal of the testimony in the record was taken from the minutes of the books kept by the secretary, Schultze. A detective named Sisk, and known to appellant to be a detective and policeman at the time he joined, filed his application and paid his initiation fee. This was recommended by appellant and M. D. Outrans. It is shown that immediately upon filing this application he bought beer from appellant; this occurring immediately, and before his application was voted upon. It would seem to follow as a matter of fact that, wherever appellant and Outrans recommended a party, that operated usually as an election to membership. It is unnecessary to go into a detailed statement of the facts. The fishing and hunting phases seem to have been abandoned upon the removal of its headquarters from Sylvan Beach to the point near the city of Houston.

Appellant under the evidence claims that his club had a right to sell within the rule laid down by this court in the cases of Keonig v. State, 33 Tex. Cr. R. 367, 26 S. W. 835, 47 Am. St. Rep. 35, Adams v. State, 145 S. W. 943, and cases by the Supreme Court: State v. Austin Club, 89 Tex. 20, 33 S. W. 113, 30 L. R. A. 500, and State v. Duke, 104 Tex. 355, 137 S. W. 654, 138 S. W. 385. Under the facts we do not believe that this club comes within the rule laid down in those cases, but governed by the rule laid down in Trezevant v. State, 145 S. W. 1191. These parties recommended by appellant and Outrans are not members of the club under its by-laws and regulations as we understand them. It has been the rule in Texas that a bona fide club dispensing liquors to its mémbership is not within the denunciation of the law requiring license to follow the business of selling intoxicating liquors, and therefore would not be subject to punishment ; but these clubs and organizations must be bona fide and adhere strictly to the law, otherwise the selling would be illegal.

Under the testimony we fail to find where the board of directors had at any time met or passed upon these applications, unless it be the fact that appellant and Out-rans, who was not a member oi the organization, constituted the requisite number recommending, and at some other time appellant and Mr. Schultze would meet and ratify what they had done. The evidence does not show that the board of directors as such had any meeting. In fact, the minutes show that the only two parties who were present at those board meetings were appellant and Schultze. The minutes recite that the other directors were voting by proxy! Schultze, it appears, voted the proxies. This organization seems to smack too much of evasion and want of good faith.

Believing that the court trying the case entered the proper judgment, it is ordered that it be affirmed.


text:
    MESSER v. STATE.
    (No. 3140.)
    (Court of Criminal Appeals of Texas.
    May 20, 1914.)
    Criminal Raw (§ 1106*) — Appeal—Statement of Facts — Time fob Filing.
    Where the court in which defendant was convicted of violating the local option law adjourned February 21st, and the statement of facts and bills of exception were not filed until March 12th, and the record contained no order allowing time after adjournment for filing of the facts and bills, as is necessary in a misdemeanor case, none of the matters set forth for revision could be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2890-2892; Dec. Dig. § 1106.*]
    Appeal from Kleberg County Court; Ben F. Wilson, Judge.
    J. D. Messer was convicted of violating the local option law, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of violating the 'local option law.

Court adjourned on 21st of February. The statement of facts and bills of exception were not filed -until the 12th of March. The record does not contain an order authorizing the filing of the facts and. the bills aft•er the adjournment of the term. This being a misdemeanor, it was necessary, and, without-the order allowing the 20 days after'adjournment of the term, these matters cannot be considered. The record being in this condition, none of the matters set forth for revision can be considered.

The judgment is affirmed.


text:
    ALLEN v. STATE.
    (No. 3126.)
    (Court of Criminal Appeals of Texas.
    May 13, 1914.)
    Criminal Law (§ 1020) — Appeal—Dismiss- - al — Want of Jurisdiction.
    Under the express provisions of Code Cr. Broe. 1911, art. 87, no appeal lies frota a conviction in the county court on appeal from a justice’s court, where the fine assessed exclusive of costs does not exceed $100, and an appeal to the Court of Criminal Appeals from such a judgment will be dismissed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2578-2580; Dec. Dig. § 1020.]
    Appeal from Guadalupe County Court; J. M. Woods, Judge.
    Roy Allen was convicted in the county court upon appeal from the justice's court of unlawfully using a horse of another without the consent of the owner, and fined $100 and costs, and he appeals.
    Appeal dismissed.
    P. E. Campbell, of Seguin, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was charged by complaint in the justice’s court, precinct No. 1, Guadalupe county, Tex., with the offense of unlawfully using a horse of Charley Scott, without the consent of Charley Scott. He was tried in the justice’s court and found guilty by a jury. He perfected his appeal to the county court and was tried on the 17th day of March, 1914, before the court, a jury having been waived by appellant; he was again convicted, and fined $100 and costs of prosecution. In due season a motion for a new trial was made, presented,' and overruled. Appellant gave notice of appeal and attempts to bring his case before this court for review and revision.

Article 87, C. C. P., provides that in cases on appeal from justice courts, if the fine assessed in the county court shall not exceed $100, exclusive of cost, no appeal lies to this court. Tison v. State, 35 Tex. Cr. R. 360, 33 S. W. 872.

Appeal dismissed.


text:
    LOOPER v. STATE.
    (No. 3114.)
    (Court of Criminal Appeals of Texas.
    April 29, 1914.
    Rehearing Denied June 3, 1914.)
    Intoxicating Liquors (§ 236*) — Offenses— Evidence — Sufficiency.
    Uncorroborated evidence of a detective who admitted that he induced accused to make the sale in order to detect him in a violation of law, though contradicted by accused, will support a conviction for violation of the local option law.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 300-322; Dec. Dig. § 236.*]
    Appeal from Johnson County Court; J. B. Haynes, Judge.
    Jake Looper was convicted of violating the local option law, and he appeals.
    Affirmed.
    W. B. Featherstone, of Cleburne, for appellant. C. E. Lane, Asst. Atty. Gen.-, for the State.
   DAVIDSON, J.

Appellant was convicted of violating the local option law; his punishment being assessed at a fine of $25 and 20 days’ imprisonment in the county jail.

The state’s witness was named Small. He testified that his home was at Greenville, Tex., and that lie was in Johnson county in the employ of the county attorney to— “round up a few of these bootleggers. I had not been here oyer a week then. I came from Cresson here. I was visiting an uncle at Cres-son. I was born in Virginia, and my home is in Greenville, Tex. Small is my correct name. I went by the name of Ford because I didn’t know * * * didn’t want any one to know what my real name was when I -was working in this detective business, X was going by the name of Ford when I bought some of this whis-ky. I am to get $10 out of every conviction that I help get. * * * I got the money from Mr. Russell, county attorney, with which to buy this whisky. I got $5 from him about December 14th or 15th. I got it to buy whisky with. The county attorney told me he wanted to round up a few of these bootleggers.”

The defendant testified:

“I met Small down there at the pool hall about the time he says I did. He gave me a drink of whisky and the next day, or some time about that time — I had known him around there for about a week — he came in and said he wanted a drink, and asked me to go in with him and buy a half pint. I gave him a quarter, and he went off and came back with a half pint of whisky. X never at any time sold him a drop of intoxicating liquor. He drunk nearly all of the whisky I went in with him to buy.”

Without going into a detailed statement of the examination and cross-examination, this presents the theories of the state and the defendant. There is some evidence of contradictions and matters of that sort that usually arise in cases of this character which directly and indirectly affect the weight of the testimony and merits of the case; but the above is a sufficient statement.

Under the decisions of this court, this judgment will have to be affirmed. The detective testifies that he bought the whisky, and defendant denied it. The writer has had occasion to disagree with the majority of the court ■on the force and effect of the evidence of detectives coming in the shape that this detective places himself, and does not believe that the conviction ought to be sustained on his uncorroborated evidence. While it is true the statute says the conviction may be sustained upon the testimony of the purchaser of whis-ky in local option cases, yet it has been my understanding of that statute that it does not protect from the rule of accomplice testimony a man who deliberately works up •cases and induces his fellow men to commit crime; that that statute has no reference to that character of case. But my views have not obtained as the law. Under the decisions of the court, this judgment will be affirmed; and it is accordingly so ordered.


text:
    WARD v. STATE.
    (No. 3137.)
    (Court of Criminal Appeals of Texas.
    May 20, 1914.)
    Weapons (§ 14*) — Unlawful Display — “Prí-vate Residence.”
    Where, in a prosecution for rudely display-ting a deadly weapon in a manner calculated to disturb the inhabitants of a private residence, it appeared that the tenant who had occupied the residence had loaded all his household articles preparatory to moving off the premises, but had not left the premises when trouble arose, and defendant displayed his rifle in such a way as to frighten the tenant’s wife and children, the place was properly found to have been the “private residence” of the tenant at the time of the offense.
    [Ed. Note. — For other cases, see Weapons, Cent. Dig. § 19; Dec. Dig. § 14.

    For other definitions, see Words and Phrases, vol. 6, p. 5578.]
    Appeal from Montague County Court; Levi Walker, Judge.
    Lee Ward was convicted of rudely displaying a deadly weapon in a manner calculated to disturb the inhabitants of a private residence, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted under an indictment charging him with going into and near a private residence and rudely displaying a deadly weapon — a gun — in a manner calculated to disturb the inhabitants of said private residence.

R. N. McCabe was a tenant of appellant. On the 29th of last December McCabe loaded up his household goods preparatory to moving off the premises of appellant, and, after he had loaded up all his household goods, and his wife and children had gotten in the wagon appellant drove up and said to McCabe, “You have taken my double shovel off, and I want you to bring it back,” when McCabe admitted he had taken it off, but claimed it was his, and said, “I turn the place over to you.” While McCabe was attempting to drive his cow out, McNabb, who was assisting McCabe in moving, and appellant had some words, and appellant got his Winchester out of his wagon, and Mrs. McCabe testifies:

“He [appellant] held his gun in front of him in both hands [indicating and showing how the gun was held], and she and her children became frightened and jumped from off the wagon and ran.”

Appellant objected to Mrs. McCabe being permitted to testify that she became frightened and ran, on many grounds, but none of them we think are tenable. He was being prosecuted for going near to a private residence and disturbing the inhabitants, and, if his acts and conduct were such as to frighten the wife, she would undoubtedly be permitted to so testify. It is true that whether his acts and conduct on the occasion were such as to disturb the inhabitants would be a question for the jury; but, if a witness was frightened by his conduct, it is a fact she would be,permitted to testify to. However, the court withdrew this testimony from the jury, and instructed them not to consider it.

The only other question presented by the record is that, at the time appellant displayed the Winchester, the house was not the private residence of McCabe, but that be had surrendered possession to appellant. This was raised by excepting to the charge of the court, which instructed the jury:

“You are further charged that as to whether the house in question was or was not the private residence .of R. N. McCabe and family at the time of the disturbance, if any, is a question of fact to be proven like any other fact, and, if you have a reasonable doubt as to whether it was the private residence of said McCabe, you will acquit the defendant.”

Appellant desired the court to find as a fact that the place was not the residence of McCabe at the time, and instruct the jury to acquit. We think, within contemplation of the statute, this house was the private residence of McCabe at the time, and the jury did not err in so finding, and the court submitted the matter as favorably as appellant had a right to expect under the evidence by instructing the jury it was a question of fact upon which they must pass. It is true Mc-Cabe had loaded all his household articles preparatory to moving off the premises; but he had not got off the premises before the trouble arose, and before appellant displayed his rifle in a way to frighten McCabe’s wife and children.

The judgment is affirmed.


text:
    MORA v. STATE.
    (No. 3092.)
    (Court of Criminal Appeals of Texas.
    April 15, 1914.
    On Motion for Rehearing, May 13, 1914.)
    1. Rape (§ 52) — Evidence—Age of PROSECU-TRIX.
    The evidence amply showed that prosecu-trix was under 15 years of age, where, though the year of birth was not named, it was fixed by an event the date of which was shown.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 71-74, 76; Dec. Dig. § 52.]
    2. Rape (§ 52) — Sufficiency of Evidence.
    Where penetration was testified to by the girl and admitted by appellant in his confession introduced in evidence, it was sufficiently proven.
    [Ed. Note. — For other eases, see Rape, Cent. Dig. §§ 71-74, 76; Dec. Dig. § 52.]
    3. Ceiminal Law (§ 922) — Objection to Charge — 1Time.
    Where no objection was taken to the . charge during the- trial and before it was read to the jury, it is too late to complain of it for the first time in the motion for a new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2210-2218; Dec. Dig. § 922.]
    On Motion for Rehearing.
    4. Criminal Law (§ 1086) — Record — Ruling on Motion to Elect:
    - The record on appeal should contain the court’s judgment on a motion to require the, state to elect' which offense it wduld rely upon in asking for a conviction.
    [Ed. Note. — For other cases, see Criminal Law, Cent. .Dig. §§ 2736-2769, 2770, 2772, 2794; Dec. Dig. § 1086.]
    5. Criminal Law (§ 678) — Trial—Election Between Acts.
    The state, at the conclusion of the testimony in a prosecution for rape on a girl under 15 years of age, should be required, on motion of defendant, to elect upon which specific act of intercourse it would rely for a conviction.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1580-1583; Dec. Dig. § 678.]
    Appeal from District Court, Webb County; J. P. Mullally, Judge.
    Ildelfonso Mora was convicted of rape on a girl under 15 years of age, and he appeals.
    Reversed and remanded on rehearing.
    N. A. Rector, of Austin, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was convicted of rape on a girl under 15 years of age, and his punishment assessed at 5 years’ confinement in the state penitentiary.

The first ground in the motion for new trial contends that the evidence is insufficient, because no witness named the year in which prosecutrix was born. The evidence amply shows that she was under 15 years of age, for, while the year of birth was not named, yet it was fixed by an event, and the date of this shown; and it would be immaterial, under such circumstances, whether or not she gave her consent to the act of intercourse.

Penetration was testified to by the girl, and admitted by appellant in his confession introduced in evidence; so this fact was sufficiently proven.

As to there being no sworn testimony that Raquel Ojeda was not married to defendant, this was admitted in open court on the trial of this case. ' The evidence amply supports the verdict, and, under the testimony in this case, there was no error in admitting the confession in evidence.

This case was tried in December of last year, and no objections were made to the charge as given during the trial of the case and before it was read to the jury, and it is too late now to complain of'the charge for the first time in the motion for new trial.

The judgment is affirmed.

On Motion for Rehearing.

Appellant has filed a motion for rehearing in this cause, in which he calls our attention to the motion made to require the state to elect upon which act of intercourse it would rely in asking for a conviction. In some way we overlooked this motion. There is no judgment in the record upon it, and it is not recited in the index to the record. The bill in the record terms it a special charge, and ■ it is not included in the bill, but attached ; thereto as an exhibit, after another special charge. •

The record should contain the court’s-judgment thereon, but it does not do so, and the only way we can determine that it was called to the attention of the trial judge, is. that at the bottom of it it is marked, “Refused.”

In prosecutions for rape on a girl under 15 years of age, where the parties stand in relationship to each that these parties did, all arts are admissible in evidence. Battles v. State, 63 Tex. Cr. R. 157, 140 S. W. 788, but, as we said in that case:

“The state, at the conclusion of the testimony, should he required to elect upon which specific act it would rely for a conviction, and the court in his charge properly limit the application of the testimony as to other acts of intercourse, acts of intimacy, etc. This is the rule as we understand it in other criminal offenses, and we see no reason why it should be different in the case of rape of a child.”

Appellant having timely filed his motion to require the state to elect, the court should have sustained that motion, and erred in not doing so. Bader v. State, 57 Tex. Cr. R. 293, 122 S. W. 555; Powell v. State, 47 Tex. Cr. R. 155, 82 S. W. 516, 122 Am. St. Rep. 683; Stone v. State, 45 Tex. Cr. R. 92, 73 S. W. 956; Batchelor v. State, 41 Tex. Cr. R. 501, 55 S. W. 491, 96 Am. St. Rep. 791. And the error in not doing so is emphasized in the charge of the court.. All acts were shown to have taken place during the previous year, and, after overruling the motion and refusing to require the state to elect, the court instructed the jury to find appellant guilty, if they found he was guilty of an act of intercourse with the girl “at any time within one year before the 14th of November, 1913,” thus authorizing a conviction on any one of the four acts testified to by the witness.

Motion for rehearing is granted, and the judgment of affirmance is now set aside, and the judgment of conviction is reversed, and the cause remanded.


text:
    WHITTLESEY v. STATE.
    (No. 3148.)
    (Court of Criminal Appeals of Texas.
    May 27, 1914.)
    Criminal Law (§ 1121) — Appeal—Record.
    Where the sufficiency of the evidence to support a conviction was assigned as ground for new trial, it cannot be reviewed, unless the evidence is in the record on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2938, 2939; Dec. Dig. § 1121.]
    Appeal from Sabine County Court; J. B. Lewis, Judge.
    Travis Whittlesey was convicted of violating the local option law, and he appeals.
    Affirmed.
    See, also, 163 S. W. 78.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted of violating the local prohibition law, and prosecutes this appeal.

The only grounds in the motion for a new trial contend that the evidence will not sustain the conviction. As the evidence adduced on the trial does not accompany the record, we cannot review those grounds, and the judgment is affirmed.


author: DAVIDSON, J. HARPER, J.

text:
    THOMPSON v. STATE.
    (No. 3111.)
    (Court of Criminal Appeals of Texas.
    April 29, 1914.
    Rehearing Denied June 3, 1914.
    Dissenting Opinion June 4, 1914.)
    1. Criminal Law (§ 784*) — Instructions — Circumstantial Evidence.
    On a trial for theft, testimony that, while the prosecuting witness was in bed, accused took his pocketbook from his pants, which were lying by the bed, justified the refusal of an instruction on circumstantial evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1883-1888, 1922, 1960; Dee. Dig. § 784.*]
    2. Witnesses (§ 361*) — Character — Evidence to Sustain Character oe Impeached Witness.
    Where evidence of contradictory statements has been introduced to impeach a witness, his general good reputation may be proved, but merely laying a predicate for proof of such statements does not justify proof of good reputation.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1167-1175; Dec. Dig. § 361.*]
    3. Witnesses (§ 361*) — Character — Evidence to Sustain Character oe Impeached Witness.
    Where it is attempted to be shown that a witness is testifying under corrupt motives or fabricating testimony, evidence of his good reputation is admissible.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1167-1175; Dec. Dig. § 361.*]
    4. Criminal Law (§ 1091*) — Appeal—Bill oe Exceptions — Burden oe Showing Error.
    Where a bill of exceptions in a criminal case complaining of the admission of evidence of a witness’ good reputation for truth and veracity, as qualified by the trial judge, showed that a witness, was cross-examined as to the making of contradictory statements, but did not show whether such contradictory statements were proved, it did not show that the admission of such evidence was erroneous.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.*]
    Harper, J., dissenting.
    Appeal from District Court, Travis County; Charles A. Wilcox, Judge.
    Stella Thompson was convicted of theft, and she appeals.
    Affirmed.
    Jno. E. Rylee, of Austin, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of theft of $52 in money from Lawrence Robinson, her punishment being assessed at two years’ confinement in the penitentiary.

Briefly stated, the evidence shows that Robinson and appellant are negroes. Robinson was working at the ice factory, and on the 4th of July he came to town about the middle of the day to go to work. He brought $53 in a purse, $52 of it for the purpose of depositing it at the hank. It being a legal holiday, the hank was closed, and he went to his place of business. Later he fell in with some women of loose virtue, and went to bed with one of them. Preparatory to subsequent events lie tools off Ms pants. In one of the pockets of the pants was his purse with $52 in it, he having taken out $1 for spending purposes. While he was in bed with the prostitute, appellant, who admits she is also a prostitute, went into the room and got his pocketbook from his pocket and went away with it. She went to a water-closet. After she came from the water-closet the purse without the money was found in the closet. The officers arrested her, and the prosecution followed.

Under this state of facts, appellant contends that a charge on circumstantial evidence should have been given. She excepted' to the court’s charge for failure to give this phase of the law, and requested an instruction submitting it, which was also refused by the court. We are of the opinion that this was not a case requiring a charge on circumstantial evidence. The testimony of Robinson is to the effect that she got the pocketbook out of his pants, which were lying by the bed where he was carrying on his business with the other woman, and it was taken by appellant and carried away. We think this testimony relieves the case of being one of circumstantial evidence requiring a charge on. that phase of the law.

Another question is suggested for reversal. The court permitted the state to introduce witnesses to prove the good reputation of Robinson for truth and veracity. Appellant urged various objections to the admission of this testimony. The question is sufficiently presented by bill of exceptions No. 3. This bill recites that Mr. Zilker was permitted to testify to the general reputation of Robinson for truth and veracity, and that it was good. It is unnecessary to state the objections; there are several. The court signs the bill with an explanation. The.only part of the explanation necessary to be considered here is as follows:

“The testimony as to the reputation for truth and veracity of the witness Lawrence Robinson was admitted for the reason that, while the witness Lawrence Robinson was on the stand, the defendant’s attorney asked him several questions, in an effort to show that the witness Lawrence Robinson had made different statements on the examining trial, and on other occasions, from the statements made by said Robinson in the trial of this- case.”

The bill simply recites the court permitted this witness to swear to the general good standing of the witness for truth and veracity. There are some general propositions with reference to this character of evidence which may be stated as follows: Eirst. Where a witness has been impeached or sought to be impeached by introducing contradictory statements, his general good reputation may be placed in evidence. Second. That if it is undertaken to be shown that he was testifying under corrupt motives or for fabricating testimony, his general reputation may be sustained as being good. Third. The mere predicate to introduce contradictory statements without their being subsequently introduced will not justify evidence of general good reputation. Just what the questions were, and the manner of bringing them before the jury in the examination, or, rather, cross-examination, of Robinson, is not stated in the bill as matters of fact, nor is it ‘stated as a matter of fact that the contradictory statements were not introduced. The qualification of the judge, however, would seem to indicate they were not introduced. If the manner of examination was such as to show fabrication or corrupt motives on the part of the witness, then it would be permissible to sustain him as to truthfulness by showing general good reputation to that end. This bill does not exclude the idea that the court was correct in introducing it from these viewpoints. Under our recent decisions, the bill must be sufficiently certain to manifest the error of the court, and, unless the bill shows fully these matters, it cannot be considered. The bill of exceptions does not exclude the idea that the testimony was properly admitted, nor does it sufficiently show the court was in error. What we have said with reference to the two questions decided, we think, sufficiently disposes of the other bills of exception. The record, taken as a whole, suggests only these two questions for revision.

Viewing the record as we do, we hold there was no sufficient error to require a reversal of the judgment,' and it is therefore affirmed.

HARPER, J.

I think the bill with the qualification of the judge sufficiently presents the question, and testimony of the general reputation not admissible, as the questions propounded were not of the nature to charge the witness with recent fabrication, or any of the other exceptions to the general rule, in my opinion, and I therefore dissent.

I cannot agree that the testimony of the general reputation for truth and veracity of the witness Lawrence Robinson was admissible, and I think the bill sufficiently explicit to call this court’s attention to the error. The first bill reads:

“Be it remembered that, upon the trial of the above-numbered cause, the state’s witness A. J. Zilker being upon th,e stand, the said witness was permitted, over objections of the defendant, to testify to .the following facts, to wit: T know Lawrence Robinson and have known him for about 15 years. He has worked for me at the Loan Star Ice Factory; he was working for me on July 4, 1913, and all during that summer. I know his reputation for truth and veracity here in Austin; his reputation as a darkey is good; his reputation in the neighborhood where he lives and here in the city is good for truth and veracity; I find him to be above the average.’ And defendant, at time1 said testimony was offered, objected to same for the following reasons, to wit: (1} That said testimony was prejudicial to the rights of the defendant; (2) that same was not material to any issue in the case, in this, that the defendant and the state had closed the main testimony in the case, and said testimony was not in rebuttal of any of the testimony upon the trial; (3) that the prosecuting witness Lawrence Robinson had told his story to the jury, and defendant had not attacked his reputation for truth and veracity, and the defendant had the legal right to have his testimony considered by the jury without being bolstered by any testimony of the white witness; (4) that said witness was a white man, well known to the jury, and for him to relate to the jury said testimony was calculated to bias the jury in favor of believing the witness Lawrence Robinson and against the defendant. And the court overruled the objections to said testimony and permitted it to go to the jury as evidence, to which action of the court defendant then and there excep'ted, and tenders this her bill of exceptions and asks that the same be allowed, signed, and filed as a part of the record in this case.
“The foregoing bill of exceptions is allowed with the following qualification and explanation: The witness Zilker, in response to proper question by the state, and over the objection of the defendant, testified that the witness Lawrence Robinson’s reputation for truth and veracity was good; that the reputation was exceptionally good. Upon the objection of the defendant, and upon her request, the statement that his reputation ‘was exceptionally good’ was excluded from the jury. Afterwards, upon redirect examination by the district attorney, the witness, in connection with his answer, used the words, T find him to be above the average,’ but no objection was made to said statement other than the general objection addressed to all of the testimony with reference to the truth and veracity of the witness. The testimony as to the reputation for truth and veracity of the witness Lawrence Robinson was admitted for the reason that, while the said witness Lawrence Robinson was on the stand, the defendant’s attorney asked him several questions, in an effort to show that the witness Lawrence Robinson had made different statements on the examining trial and on other occasions from the statements made by said Robinson in the trial of this case.”

The next bill complains of the testimony of John J. Butler, a white man, who was permitted to testify that the reputation of Lawrence Robinson had never been questioned, and that W. B. Loveless, a merchant, was permitted to testify:

“I live in South Austin. I run a general merchandise store over there. I know Lawrence Robinson, a colored boy, and have known him since he moved into my neighborhood about two years ago. He has been renting a house from me up until about one day after Christmas, when I sold the place. He trades with me. I know his general reputation for truth and veracity in the community, and it is good.”

Appellant made the same objections to this testimony that he did in the first bill.

In this ease Lawrence Robinson is a negro, and he claimed that appellant had stolen $52 from him. No other witness testified that he had the money, or that appellant had stolen it. The negro woman as emphatically denied stealing the money, making a direct conflict in the testimony. If the jury believed the negro man, they would convict; if, they believed her, she was entitled to an acquittal; and, under such circumstances, the state was permitted to throw into the scales the testimony of three white men to support the testimony of the state’s witness, when the appellant had not introduced any testimony to impeach him. It is true counsel on cross-examination asked him if he did not testify at the examining trial that he bought some beer or a lunch at Piper’s saloon just before this thing occurred, and the witness answered that he. did not. No evidence was offered that he did testify other than as he did on this trial. The only testimony offered by defendant was that she took the stand and denied taking the money. In the first place, I think the bill full and explicit enough to present the error, and believe, when the qualification of the court is taken into consideration therewith, it shows in and of itself the testimony was inadmissible. The mere propounding of an interrogatory as to whether or not he had testified to an immaterial matter on a former trial, and he denies it, and no proof offered that he did so, does not authorize the introduction of supporting testimony, even though the state may need it to secuj^ a conviction. In Neill v. State, 49 Tex. Cr. R. 221, 91 S. W. 791, this court held:

“The mere fact that prosecutrix’s and appellant’s testimony was contradictory, one of the other, would not per se authorize appellant to introduce evidence of good character for truth and veracity. Nor would the sheer fact that the state had laid a predicate on the cross-examination of appellant per se authorize appellant to introduce evidence of good character.”

In Jones v. State, 38 Tex. Cr. R. 107, 40 S. W. 807, 41 S. W. 638, 70 Am. St. Rep. 719, this court held:

“This court erred in holding that the trial court should have permitted Mrs. Jones to be corroborated by her unsworn statements made to Kendall, in reference to the alleged rape, for this: The state did not seek to impeach her by showing contradictory and different statements made by her. The fact that the state did not admit the truth of her story cannot be termed an impeachment. It is never admissible to sustain a witness by proof of general good character or otherwise, until the reputation of the witness is assailed for truth and veracity or impeached by showing contradictory statements. These are conditions precedent to offering testimony to corroborate or sustain a witness. ‘Assaults upon the veracity of a witness, made only by counsel in argument, do not constitute such an impeachment of the credibility of the witness as will authorize the admission of testimony to sustain his reputation for truth and veracity.’ Ricks v. State, 19 Tex. App. 308. See Railway v. Raney, 86 Tex. 363 [25 S. W. 11]; Mortin v. State, 71 S. W. 281.”

Other cases could be cited, but I deem it unnecessary. This is not the first time we have noted our objections to refusing to consider complaints when the error is manifest, even if the objections should not in every respect be as full as they should be, heretofore merely noting our dissent, but in this case I have thought it advisable to put in a vigorous protest, when the state relies on Robinson to prove that appellant stole the money, and she as vigorously denies it, and the issue was: Was the state’s witness or appellant telling the truth?


text:
    BARNHILL v. STATE.
    (No. 3139.)
    (Court of Criminal Appeals of Texas.
    May 20, 1914.)
    Intoxicating Liquors (§ 236) — Prosecution — Sufficiency ox Evidence^Sale.
    In a prosecution for selling intoxicating liquors in prohibition territory, testimony by tbe alleged buyer that he found the whisky in his barn, but did not know to whom it belonged, and that he had previously loaned money to the defendant, but nothing was said at that time about whisky, is not sufficient to sustain a conviction, although a justice of the peace testified that the witness had sworn before him that he purchased the whisky from the defendant.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 300-322; Dec. Dig. I 236.]
    Appeal from Jack County Court; J. P. Simpson, Judge.
    Jeff Barnhill was convicted of selling intoxicating liquor in prohibition territory, and he appeals.
    Reversed and remanded.
    Henley & MeComb, of Jacksboro, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted of selling intoxicating liquor to W. I. Shadle in prohibition territory.

There is but one question we deem it necessary to discuss, the sufficiency of the evidence to sustain the conviction. Shadle testified that he ran a livery stable in Jacks-boro on the 12th day of October, 1913, and that he got three pints of whisky in a stall in his stable on that day; that he did not get it from defendant, and that he had never testified that he bought three bottles of whisky from appellant and paid him $3 for it; that he did not remember what he testified before the justice of the peace, but he never testified that he had bought any whisky from appellant; that he loaned defendant $3 on the 12th of October, but nothing was said about whisky by either of the parties; that since that time Barnhill had offered to pay the money back, but, under the advice of the sheriff, he had refused to receive it; that this was during carnival week in Jacksboro, and a good many people had whisky in his stable, but, if appellant had any in the stable, he did not know it. This is all the evidence the state introduced to prove a sale by appellant to Shadle, and it fails to show a sale; consequently the case must be reversed and remanded.

The state introduced the justice of the peace, who testified that on a former occasion Shadle had appeared before him and swore that he did buy these three bottles of whisky from appellant and paid him $3 for it. The sheriff testified that Shadle told him he had purchased this whisky from appellant and showed the whisky to him. It seems to us that, while the testimony given by Shadle on the trial of this case will not support a conviction of appellant, yet it fur- J nishes ample grounds to form the basis of a charge of perjury against Shadle, and the testimony adduced on this trial would sustain such charge, and he ought to be prosecuted therefor. If he swore falsely before the justice of the peace, and put appellant to the expense of defending against a false allegation, he should be punished. If he swore to the truth before the justice of the peace, and on this trial he is testifying falsely, the interests of the state demand his conviction. The crime of -perjury is one that all legitimate means should be used to stamp out, and, if one is not of that character of man who from choice would testify to the truth, he should be made afraid not to do so by being made aware that he who testifies falsely in the courtroom is sure of speedy and certain punishment.

The judgment is reversed, and the cause remanded.


author: PRENDERGAST, P. J.

text:
    BROWN v. STATE.
    (No. 3018.)
    (Court of Criminal Appeals of Texas.
    May 20, 1914.)
    Licenses- (§ 40*) — Plumbers—Statutes—Application.
    Rev. Stat. 1911, art. 986, provides that every city having underground sewers or cesspools shall regulate the tapping thereof, and house draining and plumbing. Articles 987 and 988 require such cities to create a board for the examination of plumbers. Held that, where accused was charged with conducting a plumbing business in a town without a license, but it was not shown that the town had underground sewers or cesspools, or that it had any such officers as could constitute a plumbing examiners’ board, and had no such board, a conviction could not be sustained.
    [Ed. Note. — Eor other cases, see Licenses, Cent. Dig. §§ 79-83; Dec. Dig. § 40.*]
    Appeal from Dallas County Court, at Law; W. F. Whitehurst, Judge.
    J. H. Brown was convicted of unlawfully conducting a plumbing business in Dallas without a license, and he appeals.
    Reversed.
    Muse & Barrett, of Dallas, for appellant. C. E. Lane, Asst. Aj;ty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was prosecuted for unlawfully engaging in, working at, and conducting the business of plumbing, without license. He was convicted and fined $50.

The statute under which he was prosecuted is a part of the Acts of 1897, p. 236, and taken from that act is article 131, P. C., as follows:

“Any person, whether as master plumber, employing, or journeyman plumber, engaged in, working at, or conducting the business of-plumbing ^without license, as provided by law, shall be guilty of a misdemeanor, and, on conviction thereof, shall pay a fine of not less than twenty nor more than two hundred and fifty dollars.”-

Afterwards section, 1 of said act was amended by the Act of March 20, 1909, p. 162. This section was recast in the Revised Civil Statutes of 1911, and is now embraced in articles 986 to 990 of our Revised Civil Statutes.

Said article 986 provides that every city in this state, whether organized under the general laws of the state or by special act of the Legislature, having underground sewers or cesspools shall pass ordinances regulating the tapping thereof, and house draining and plumbing. The next article requires such cities to “create a board for the examination of plumbers, to be known as the examining and supervising board of plumbers to provide for an inspection of plumbing.” Article 988 provides that said board shall consist of five persons: (1) A member of the local board of health, if there be such board of health, and, if there be no such board of health, then the city physician, or city health officer; (2) the city engineer; (3) the city inspector of plumbing ; (4) a master plumber of not less than 10 years’ active and continuous experience as a plumber; and (6) one journeyman plumber of not less than 6 years’ active and continuous experience.

The city of Dallas was granted a special charter in 1907. We have carefully examined that act, and have been unable to find therefrom that said city has a board of health, or a city physician, or city health ofiicer, or a city engineer, or a city inspector of plumbing. From the statement of facts in this ease, we cannot find that the said city has either of said offices or officers or a board of health. Neither does the statement of facts show that said city has underground sewers or cesspools.

The facts shown by the statement of facts are uncontroverted. It is shown that appellant was engaged in the plumbing business in the city of Dallas on June 13, 1913, the time the offense is alleged; that, in effect, he and all such plumbers, in order to engage in that business, had to execute to the city a bond, and, when they did this, they got two permits — one from the city waterworks office, and the other from the city engineering department — to engage in said business. And it seems that, based on these, they got a license from the city tax collector to engage in said business; that appellant had made this bond, gotten these permits and this license, and had them at the time he was prosecuted for the offense herein charged; that before this alleged offense appellant had conferred with the city authorities to find out whether there was any board of examiners before whom he had to stand an examination and get a license, and that the mayor and commissioners had refused to appoint any such board, and that, so far as he could find out, no such examination was required.

Several interesting questions are raised by appellant’s attorneys and the prosecution in this case. Among them, appellant contends that the articles of said Revised Statutes, above noted, requiring said city to appoint said board, is not mandatory, and that they do not apply to the city of Dallas, because of its special charter; but that, if so, appellant having done all he could to procure a license, and the constituted authorities failing and refusing to appoint, and having no board for the purpose, he cannot be prosecuted and convicted for having pursued his said business without a license from such a board; and that the facts do not show that the city of Dallas has underground sewers or cesspools. Therefore the said statutes do not apply to said city, even if mandatory.

We deem it unnecessary to pass upon any other question raised, except the sufficiency of the evidence to sustain the conviction, assuming, without passing on the questions, that said law applies to Dallas and is mandatory. We are clearly of the opinion that it is insufficient to sustain the conviction. The evidence does not show that the city of Dallas has underground sewers or cesspools; it does not show that the city has any such officers as could constitute such examining board; and that, as a matter of fact, it has no such examining board, and has never provided for one, and refuses to do so.

Therefore the judgment is reversed, and the cause remanded. Caven v. Coleman, 100 Tex. 467, 101 S. W. 199; Robinson v. City of Galveston, 51 Tex. Civ. App. 292, 111 S. W. 1076.


author: PRENDERGAST, P, J.

text:
    MARTONI v. STATE.
    (No. 3133.)
    (Court of Criminal Appeals of Texas.
    May 20, 1914.)
    1. Criminal Law (§ 376) — Plea lor Suspended Sentence — Evidence—Admissibility.
    Accused, charged with selling whisky in a prohibition county, who filed his sworn plea for suspension of sentence, if convicted, thereby put his general reputation in issue, and the state could show that he had been indicted for various offenses, including unlawful sales of liquor in prohibition territory, and that indictments other than the one on which he was being tried were pending against him.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 836-839, 841, 843; Dec. Dig. § 376.]
    2. Witnesses (§ 337) — Impeachment—Cbim-INAL ÓFFENSES.
    Where accused, charged with selling whisky in a prohibition county, testified in his own behalf, the state could attack his general reputation and show that he had been indicted for various offenses, including sales of intoxicating liquors in prohibition territory, and that indictments therefor were pending against him, to affect his credibility.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1113, 1129-1132, 1140-1142, 1146-1148; Dec. Dig. § 337.]
    3. Witnesses (§ 268) — Examination—Cross-Examination — Extent.
    The cross-examination of a deputy sheriff testifying for accused is not limited to what was testified to on direct examination; but the state may ask him any question material in 'the ease.
    [Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. §§ 931-948, 959; Dee. Dig. § 268.]
    4. INTOXICATING- LIQUORS (§ 233) — VIOLATION of Prohibition Law — Evidence—Admissibility.
    On a trial for selling whisky in a prohibition county, evidence that officers under a search warrant found in accused’s trunk about 76 pint bottles of whisky was admissible.
    [Ed. Note. — Eor other cases, see Intoxicating Liquors, Cent. Dig. §§ 293-297, 29S%; Dec. Dig. § ¿33.]
    5. Criminal Law (§ 1111) — Bill of Exceptions — Qualification—Effect.
    Accused, accepting a bill of exceptions as qualified by the court, is bound by the qualification.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2894-2896; Dec. Dig. 1111.]
    6. Intoxicating Liquors (§ 233) — Offenses —Evidence—Admissibility.
    On a trial for selling whisky in a prohibition county, the state may, on the cross-examination of accused, show that he had at the time of the alleged offense a United States internal revenue license to sell whisky.
    [Ed. Note. — For other cases, see Intoxicating Liquors. Cent. Dig. §§ 293-297, 298%Dec. Dig. § 233.]
    7. Intoxicating Liquors (§ 233*) — Offenses —Evidence—Admissibility.
    Where accused, charged with selling whisky in a prohibition county, filed a plea for suspended sentence, evidence that he had obtained a United States internal revenue license to sell whisky in prohibition territory was admissible to aid the jury in determining whether, under the circumstances, they would suspend the sentence.
    [Ed. Note. — Eor other cases, see Intoxicating Liquors, Cent. Dig. §§ 293-297, 298%; Dec. Dig. § 233.]
    8.. Criminal Law (§ 1169) — Harmless Error-Erroneous Admission of Evidence.
    The error, if any, in admitting evidence that accused, charged with selling intoxicating liquor in a prohibition county, had an internal revenue liquor license was not reversible, where the court withdrew the evidence from the jury and directed them to wholly disregard it.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. § 1169.]
    9. Criminal Law (§ 1206*) — Punishment.
    Under Act Aug. 18, 1913 (Acts 33d Leg. [Extra Sess.] c. 5), requiring the courts to sentence a person convicted of a felony for an indefinite time, fixing for the minimum the minimum prescribed by law, and for the maximum the maximum found-by the jury, the court, on sentencing one convicted of selling whisky in a prohibition county, cannot sentence accused for two years, the time fixed by the verdict; but the sentence must be made in accordance with the statute.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 3271-3277, 3279, 3280; Dec. Dig. § 1206.]
    Appeal from District Court, Bowie County; H. E. O’Neal, Judge.
    Syl Martoni was convicted of unlawfully selling whisky in a prohibition county, and he appeals.
    Reformed and affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

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

   PRENDERGAST, P, J.

Appellant was convicted for unlawfully selling whisky in a prohibition county, and his punishment, assessed at two years in the penitentiary.

The evidence by the state makes a clear ease against appellant, showing a sale. Appellant denied making the sale. The state’s main witness, A. Smissen, was a detective employed by the county attorney of Bowie county to ferret out unlawful sales of intoxicating liquors, and was paid as such for his services. He testified that a sale of whisky by appellant was made to him, and he paid him $1 therefor. Under the statute and many decisions of this state he was not an accomplice, so that the court did not err in not charging that he was such, and requiring his testimony to be corroborated.

Appellant duly filed his sworn plea seeking to have his sentence suspended under the statute, if convicted. By this he put his general reputation and character as a peaceable law-abiding citizen in controversy, and the state had the right to introduce evidence on these subjects. It was therefore permissible for the state to show that he had been indicted for various offenses, among others, four times for bootlegging, making unlawful sales of intoxicating liquors in prohibition territory, which were felonies, and that four indictments other than the one on which he' was being tried were then pending against him. Williamson v. State, 167 S. W. 360, de- ¡ cided May 13, 1914. This was also admissible as affecting his credibility as a witness. He testified in the case. So that all evidence objected to by appellant on this line was admissible, and his bills thereabouts show no error.

Appellant introduced Mr. Watlington, a deputy sheriff, who testified in his favor, disputing Mr. Anderson, one of the state’s material witnesses. After he got through with his direct examination, he was turned over to the state for cross-examination. The state had the right to ask and have him to answer any question that was material in the case. The cross-examination did not have to be limited by what appellant had drawn out on direct examination. Section 1112, White’s G. O. P. Ann.

By these two officers, Watlington and Anderson, the state proved in substance that about the time of the alleged offense against appellant they got out a search warrant and searched the house where appellant stayed and found therein his trunk, which contained some 72 to 76 pint bottles of whisky. This evidence was admissible under the many decisions of this court. Wagner v. State, 53 Tex. Cr. R. 306, 109 S. W. 169; Myers v. State, 52 Tex. Cr. R. 558, 108 S. W. 392; Starbeck v. State, 53 Tex. Cr. R. 195, 109 S. W. 162; Southworth v. State, 52 Tex. Cr. R. 540, 109 S. W. 133; Field v. State, 55 Tex. Cr. R. 527, 117 S. W. 806; Myers v. State, 56 Tex. Cr. R. 224, 118 S. W. 1032; Ellis v. State, 59 Tex. Cr. R. 628, 130 S. W. 170; Hardgraves v. State, 61 Tex. Cr. R. 327, 135 S. W. 132; Cowley v. State, 161 S. W. 471.

There was some question as to when this liquor in the trunk was found, appellant claiming that it was some six weeks, at least, after the alleged offense; hut the court, in allowing his bill, expressly stated, “This intoxicating liquor was found about the time of the alleged offense.” He accepted this bill as thus qualified, and is bound thereby under all of the decisions of this court. Judge White says (section 858, C. C. P. Ann.):

“When a bill of exceptions contradicts a statement of facts, in any specified particular, the bill will be held to control and to state correctly the disputed matter,” citing many cases.

It is needless to collate the very large number of cases so holding continuously down to this date. But see James v. State, 63 Tex. Cr. R. 75, 138 S. W. 612; Conger v. State, 63 Tex. Cr. R. 312, 140 S. W. 1112; Best v. State, 164 S. W. 997.

After he had testified in his own behalf, on cross-examination, the district attorney was permitted, over his objections, to ask him if he had not had a United States internal revenue license to sell whisky. He at first denied that he had had. On the district attorney further pressing him, he admitted that he had had, but was not certain as to the time. He thought, however, it was for 1913, and then was asked if the license was not dated back to cover a period behind what he had paid for. He denied this. What the state was seeking to show was that he had this internal revenue license at the time of the sale alleged in this case, or it covered that period of time. There was no error in the court permitting the district attorney to ask these questions. If it had developed that he had license covering the period of time the sale was alleged in this case, it would have been not only admissible, but strong evidence against him in this case. The evidence, however, was admissible under his plea for suspended sentence, because it affected his character and standing as a citizen even at the time of this trial to show that he had license to sell intoxicating liquors in prohibition territory, for the jury had to determine whether with that and all the other circumstances against him they would suspend his sentence.

Again, in order to make it certain about when the license applied, he afterwards introduced a receipt for the money for the license, which was dated September 11, 1913, and showed that the $25 he paid for the license was for the year beginning September 1, 1913. When the court charged the jury, he told them:

“The testimony as to the defendant having United States revenue license is withdrawn from you as evidence, and you will not use it against the defendant for any purpose; but you will wholly disregard same.”

Notwithstanding this, appellant claims that the evidence was so prejudicial to him that the effect of it could not be eradicated by the court’s charge. As stated above, the evidence was admissible under his plea for suspended sentence; but, if it had not been, it certainly is not of such a nature as to authorize or justify this court to reverse. Miller v. State, 31 Tex. Cr. R. 636, 21 S. W. 925, 37 Am. St. Rep. 836; Hatcher v. State, 43 Tex. Cr. R. 239, 65 S. W. 97; Robinson v. State, 63 S. W. 870; Trotter v. State, 37 Tex. Cr. R. 474, 36 S. W. 278; Jones v. State, 33 Tex. Cr. R. 8, 23 S. W. 793; Morgan v. State, 31 Tex. Cr. R. 1, 18 S. W. 647; Sutton v. State, 2 Tex. App. 348; Roberts v. State, 48 Tex. Cr. R. 210, 87 S. W. 147. In Hatcher v. State, supra, this court said:

“Some of the cases hold that the exclusion of such testimony, (inadmissible) will not cure the error, while others hold the contrary. In such a conflict the true rule would seem to be that, if the admitted testimony is of such a damaging character as to suggest the impossibility of withdrawing the impression produced on the minds of the jury, and thus curing the error, it will be cause for reversal; otherwise, if the testimony is not of that damaging character, and not likely to influence the jury, it can be withdrawn, and the error of its admission thereby cured.”

In Miller v. State, supra, which was a murder case, with the death penalty inflicted, and affirmed, this court said:

“The affidavit charging defendant with the offense of slander was also admitted in evidence. The slander charged imputed to the female mentioned a want of chastity of a most revolting nature. The contents were hardly germane to any issue in the case, in the absence of evidence bringing home knowledge to defendant of the existence of the affidavit, and we are not prepared to say that it may not have prejudiced defendant in the minds of the jury. The court, however, subsequently withdrew the affidavit from the consideration of the jury and instructed them verbally, as well as in writing, to disregard it as evidence in the case.
“The effect of withdrawing and excluding testimony erroneously admitted, which was or may have been prejudicial in its nature and tendency, has been the subject of much discussion in the courts, and the decisions are not harmonious upon the question. The weight of authority, however, seems to be that such withdrawal cures the error, and such has been the opinion entertained by this court. Sutton v. State, 2 Tex. App. 342; Marshall v. State, 5 Tex. App. 273; Phillips v. State, 22 Tex. App. 139 [2 S. W. 601]; Nalley v. State, 28 Tex. App. 387 [13 S. W. 670]. See, also, State v. Towler, 13 R. I. 661; Thomp. Trials, §§ 715, 722, 723, and notes.
“in Sutton’s Case, supra, it was said: ‘But, conceding the court erred in admitting this testimony, the error, if in fact any was committed, was corrected by the court afterwards withdrawing it from the consideration of the jury.’ This ruling has been approved in subsequent cases, and the doctrine uniformly upheld, that when improper evidence has been admitted over objection, it is the proper practice, and may become the duty of the court, to exclude or withdraw it from the jury and instruct them to disregard it in finding their verdict. Authorities above cited; Willson’s Crim. Stats. § 2514.
“To hold otherwise would be to sanction the doctrine that the court could not cure any error into which it may have fallen by mistake or. inadvertence, and thus render it helpless to rectify errors committed, and the trial a mockery and a farce. .We cannot sanction such a doctrine. It is not intended here to hold that eases may not arise in which the withdrawal of testimony would not cure the error committed in admitting same, for it may occur that such evidence was of such a prejudicial character as to so influence the jury against the defendant that he would be deprived of a fair and impartial trial. We do not think, however, this evidence of that character.”

So that in no event does the admission of said evidence authorize a reversal of this case.

We notice the sentence in this case is for two years, the time fixed by the verdict. Section 1 of the act of the Legislature approved August 18, 1913 (Extra Sess.) p. 4, requires the court to sentence a person convicted for a felony, except certain felonies, when the punishment is five years or less, for an indefinite time, fixing such sentence the minimum for the offense prescribed by law and the maximum found by the jury. The sentence of the lower court will be here reformed in accordance with this law. It is therefore ordered that the said sentence be reformed, and the judgment affirmed.


text:
    WILLIS v. STATE.
    (No. 3136.)
    (Court of Criminal Appeals of Texas.
    May 20, 1914.)
    1. Criminal Law (§ 1120) — Rulings on Evidence — Bill ox Exceptions — Sufficiency.
    A bill of exceptions complaining of the admission of evidence which merely states the question and answer complained of, without showing the connection in which the testimony was elicited, presents no question for review.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2931-2937; Dec. Dig. § 1120.]
    2. Criminal Law (§ 1169) — Harmless Error-Erroneous Exclusion ox Evidence Subsequently Admitted.
    The error, if any, in excluding evidence subsequently admitted is not prejudicial.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. § 1169.]
    3. Criminal Law (§ 675) — Reception ox Evidence — Impeachment—Cumulative Evidence.
    On a trial for assault with intent to murder, it was immaterial to show how many times prosecutor had paid fines for fighting, where the court admitted evidence as to all fights he had engaged in.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 850, 1607; Dec. Dig. § 675.]
    4. Witnesses (§ 350) — Impeachment—Evidence.
    A question on cross-examination of a state’s witness as to whether he had not run away with another man’s wife was properly excluded, in the absence of any showing that the witness had been indicted, or that any complaint had been filed against him.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1140-1149; Dec. Dig. § 350.]
    5. Criminal Law (§ 1120) — Rulings on Evidence — Bill ox Exceptions.
    A bill of exceptions complaining of the sustaining of an objection to a question asked a witness is incomplete, where it does not state the answer expected.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2931-2937; Dec. Dig. § 1120.]
    6.Criminal Law (§ 1122) — Questions Reviewable — Improper Remarks ox District Attorney.
    Where alleged improper remarks of the district attorney were not disclosed by the record or bill of exceptions, failure to give a charge requesting the jury not to consider the remarks would not be considered on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2940-2945; Dec. Dig. § 1122.]
    Appeal from District Court, Cherokee County; L. D. Guinn, Judge.
    Jake Willis was convicted of assault to murder, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted of assault to murder, and prosecutes this appeal from such conviction.

It is useless to recite the testimony, for the testimony is ample to support the conviction, and, unless errors are pointed out in the bills of exception, the judgment should be affirmed. No complaint was made of the charge of the court at the time it was given, and none is presented in the motion for new trial.

In one bill it is contended the court erred in sustaining an objection to the following question:

“Didn’t Mr. Thompson warn you and tell you that you had better quit drinking or you would get in trouble that day?”

The bill does not show what answer the witness would have given, and later Mr. Thompson was permitted- to testify he did so tell appellant, which fact was not questioned by the state.

J. H. Thompson had testified that the reputation of the prosecuting witness Johnson was not so good for peace, and he also knew appellant’s, and that it was better than Johnson’s; that the reputation of neither one in that respect was anything to brag on. On cross-examination the witness was asked, as testing the basis of his opinion in the matter, whether a man who had been guilty of misdemeanors, or one who had shot another in the back, was entitled to the best reputation as a peaceable and law-abiding citizen, when he answered that the one who shot the other in the back would have the worst reputation of the two. The connection in which, this testimony was elicited is not stated in the bill, but merely the question and answer given, and it is not presented in a way we would be authorized to pass thereon, for we would be unable to determine by the bill alone whether or not it presented error, and, if we turn to the statement of facts and read the entire testimony of this witness, certainly no harmful error is presented' by the bill.

The prosecuting witness was asked while on the stand if he did not pay a fine or work on the county road for carrying a pistol. The court, at the time he excluded the testimony, said it might later become admissible, and during the trial he did later admit testimony that Johnson on the occasion inquired about was unlawfully carrying a pistol. He was also asked how many times he had paid fines for fighting. It was immaterial as to how many times he had paid fines, as the court admitted evidence as to all fights the witness had engaged in which were inquired about.

Cal Clayton was a witness for the state, and on cross-examination he was asked if he had not run off with Jess Horne’s wife. The answer expected to be elicited is not stated in the bill and it is therefore incomplete; but, if the bill was in shape to be considered, the court committed no error in sustaining the objection. It was not proposed to be proven that he had ever been indicted for such act, or that any complaint had ever been filed against him.

The only other complaint in the record is that the court erred in failing to give a special charge requested by appellant instructing the jury not to consider certain alleged remarks of the district attorney. The fact that the district attorney made any such remarks is not verified by any bill of exceptions, nor shown by the record in any way.

The judgment is affirmed.