author: MORROW, .1.

text:
    CLAUNCH v. STATE.
    (No. 4640.)
    (Court of Criminal Appeals of Texas.
    May 15, 1918.)
    1. Intoxicating Liquors <&wkey;45 — Malt Liquors — Licenses — Repeal of Statute — “Disorderly House.”
    Pen. Code 1911, art. 496, defining as a disorderly house a place in prohibition territory where nonintoxicating malt liquors are sold, is in direct conflict with and repeals articles 157, 158, 160, levying an annual occupation tax on such business in prohibition territory, and no, conviction can be had for failure to acquire the license.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Disorderly House.]
    2. Intoxicating Liquors <&wkey;48 —“Nonintoxicating Malt Liquors.”
    Nonintoxicating malt liquor, as used in Pen. Code 1911, arts. 157, 158, 160, 406, is a fermented malt liquor, containing alcohol in quantities insuuicient to produce intoxication when used as a beverage.
    3. Intoxicating Liquors @=17 — Nonintoxicating Malt Liquors — Prohibition.
    The Legislature has the power to prohibit, as a police regulation, sale of nonintoxicating malt liquors in territory where prohibition is in force.
    4. Licenses @=7(1) — Prohibited Business.
    Courts will not enforce a law, nor can the Legislature pass one, which levies añ occupation tax upon the business of selling an article in a district of the state in which its sale is prohibited.
    Appeal from Fislier County Court; M. A. Hopson, Judge.
    On motion for rehearing. Motion granted, affirmance set aside, judgment of trial court reversed, and cause dismissed.
    For former opinion, see 199 S. W. 483.
    E. A. Watson, of Rotan, and Chas. L. Black, of Austin, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, .1.

Appellant insists that, conceding the soundness of the views expressed in the opinion heretofore rendered to the effect that the law in question was valid, a reversal should result from the fact that by a subsequent act the Legislature repealed the law. The prosecution was founded upon a violation of article 157 of the Penal Code, which is on page 51 of the Acts of 1909, and amended by the Special Session of the same Legislature, page 397, and is in Vernon’s Civil Statutes, art. 7476, and Penal Code, arts. 157. 158, 160. It levies an annual occupation tax of $2,000 on all persons selling nonintoxi-eating malt liquors.

In August, 1910, the Thirty-First Legislature, at its Third Called Session (see page 32), passed an act amending the statute defining disorderly houses, and -in this law as amended the following is found:

“Any house located in any county, justice precinct or other subdivision of a county where the sale of intoxicating liquors has been prohibited under the laws of this state, in which such non-intoxicating malt liquor is sold or kept for the purpose of sale as requires a seller thereof to obtain internal revenue license under the laws of the United States as a retail malt liquor dealer ; or any house located in any county, justice precinct or subdivision of a county in which the sale of intoxicating liquors has been legally prohibited, where the owner, proprietor or lessee thereof has posted a license issued'by the United States of America authorizing such owner, proprietor or lessee thereof to pursue the occupation and business of a retail liquor dealer or a retail malt liquor dealer.”

This amendment to the disorderly house statute is in Penal Code, art. 496, and article 500 prescribes a penalty for its violation in the sum of a $200 fine and confinement in the county jail for 20 days.

It was held by the Court of Civil Appeals, in the case of Johnson v. Elliott, 168 S. W. 968, in which the Supreme Court refused a writ of error, that the last-named statute repealed article 157, supra, the license statute, in so far as the latter authorizes the issuance of a license for the sale of nonintoxicating malt liquors in parts of the state where the sale of intoxicating liquors was prohibited. In that case Johnson, the appellant, sought a mandamus to compel Elliott, the tax collector, to issue a license for the sale of nonintoxicating malt liquors at a place in Tarrant county where the sale of intoxicating liquors was prohibited by law. He tendered the payment of the $2,000 tax, and otherwise complied with the requisites prescribed by articles 7476 and 7477, Revised Civil Stats., supra. The mandamus was refused on the ground that article 496, supra, made it unlawful to sell nonintoxicating malt liquors in prohibition territory, and that consequently no license therefor could be issued. This ruling was correct, for courts will not enforce a law, nor can the Legislature pass one, which levies an occupation tax upon the business of selling an article in a district of the state in which its sale is prohibited. State v. Texas Brewing Co., 106 Tex. 121, 157 S. W. 1166; Rathburn v. State, 88 Tex. 286, 31 S. W. 189.

The provisions of article 157, supra, licensing and making lawful, upon payment of the ; tax, the sale of nonintoxicating malt liquors, in its application to prohibition territory, are manifestly conflicting to a degree rendering them irreconcilable with article 496, supra, which makes it unlawful to soil such liquors in such territory. Nonintoxicating malt liquor, as defined in our statute, and as used in each of the laws in question, is a fermented malt liquor, containing alcohol in quantities insufficient to produce intoxication when drunk as a beverage. See authorities cited in original opinion. The Legislature had the power as a police regulation to prohibit the sale of such liquors in territory whore the sale of intoxicating liquors is prohibited by law, this, right existing to protect public health and morals, and to aid in the enforcement of the prohibition laws adopted under the local option provision of the Constitution. Ex parte Dupree, 101 Tex. 150, 105 S. W. 493; Fitch v. State, 58 Tex. Cr. R. 367, 127 S. W. 1040; Purity Extract & Tonic Co. v. Lynch, 226 U. S. 192, 33 Sup. Ct. 44, 57 L. Ed. 184, and other eases cited in the original opinion.

The conflict between the two provisions (articles 157 and 496, supra) is illustrated by the fact that tlie appellant, who> was here prosecuted for selling nonintoxicating liquors at a certain place in Fisher county without a license, is also prosecuted under article 496 for keeping a disorderly house in the same place; this based upon the fact that he kept in his house for sale nonintoxicating malt liquors. In this latter case, No. 4615, on the docket of this court (204 S. W. 436), he has been convicted and condemned to pay a fine and serve a jail penalty, and the conviction has been affirmed. His conviction in this , case is for failure to obtain a license which under the law could not be issued to him, because the Legislature by the passage of article 496, supra, as construed by the civil courts, within whose jurisdiction is the question of the issuance of license, has determined that in prohibition territory no license for the business in question can be issued. The Legislature doubtless reached the conclusion that the passage of article 496, prohibiting sales of nonintoxicating malt liquors in subdivisions of the state where the sale of intoxicating liquor was prohibited, was a more effective way of accomplishing the purpose in view of preventing sales of nonintoxicating malt liquors in such districts than by means of the license statute mentioned, and to have adopted the prohibition statute in lieu of the license statute and thereby annul the latter so far as such districts are affected.

For the reasons stated, the motion for rehearing is granted, the affirmance of the case is set aside, and the judgment of the lower court is reversed, and the cause dismissed.
      <S=sFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: DAVIDSON, P. J.

license: Public Domain

text:
    GILBERT v. STATE.
    (No. 4846.)
    (Court of Criminal Appeals of Texas.
    May 1, 1918.
    Rehearing Denied May 29, 1918.)
    1. Criminal Law i&wkey;1131(7) — Appeal—Escape — Dismissal.
    Where appeal was dismissed under Vernon’s Ann. Code Cr. Proc. 1916, arts. 912, 913, on account of the escape of appellant, recapture within ten days of his escape, while preventing a voluntary return, did not restore jurisdiction of the appeal.
    2. Ceiminal Law &wkey;>1131(7) — Appeals — Motions — Matters Reviewable.
    Ón motion to reinstate appeal dismissed on account of escape of appellant, the only matters before the court are the matters involved in the escape, and the court cannot consider an issue in the trial court as to insanity.
    Appeal from District Court, Liberty County; L. B. Hightower, Judge.
    Frank Gilbert was convicted of crime, and he appealed. Appeal was dismissed on account of the eseaxie of appellant. Motion to reinstate appeal. Overruled.
    The appeal was dismissed without written opinion.
    E. B„ Pickett, Jr., of Liberty, for appellant. E. B. Hendricks, Asst. Atty. Gen., for tlie State.
   On Motion to Reinstate Appeal.

DAVIDSON, P. J.

On a former day of tbe term this appeal was dismissed on account of the escape of appellant. This was made to appear satisfactory to the court at the time. Motion is made to reinstate the appeal. The facts show, both in the motion to reinstate and the original showing, that defendant had 'escaped; that he broke jail near midnight, and was captured, by tlie sheriff the next day some time, about 12 miles from the jail from which he escaped. There is nothing to indicate in the motion that it was his purpose to return, or that he was returning. The sheriff captured him. Under all the authorities, which are found collated in Vernon’s Crim. Stats, pp. 875, 876, this was an escape, and not 'evidence of a voluntary return. The general proposition is laid down and supported by all the authorities that where a defendant, pending his appeal, escapes from the custody of the sheriff, and not voluntarily returning within ten days, the appeal will be dismissed, and where he has been recaptured before the lapse of ten days his escape, nevertheless, divests the court of the jurisdiction of the appeal. A recapture within ten days, while preventing a voluntary return of the defendant into custody, will not restore jurisdiction of the appeal. Lunsford v. State, 10 Tex. App. 118; Ex parte Wood, 19 Tex. App. 46; Loyd v. State, 19 Tex. App. 137. These decisions follow the statute, which is article 912, C. C. P. 1911.

It is claimed in the motion that there was an issue on the trial of defendant’s insanity., This was decided against him by tbe jury, but tbis would not entitle him to have bis appeal reinstated any more than any other adverse question in the case. Any issue in the case properly presented on the record would be reviewed by the court in passing upon the transcript on its submission, but this court is not authorized to enter into an examination of the issues presented in the transcript on appeal while there is pending before it a motion to reinstate the appeal, which had been dismissed on a previous day of the term on account of the voluntary escape of defendant. This court would not he authorized to resolve itself into a trial court to review any question presented on the record on appeal from the conviction. The only matter to be reviewed by the court upon motion to dismiss tlie appeal on account of escape would be tbe matters involved in the escape. The question is whether he voluntarily escaped, and not what the merits were on the trial of his case before the jury.

The motion to reinstate the appeal will therefore be overruled.
      <§^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PKENDERGAST, J.

text:
    GIBSON v. STATE.
    (No. 4834.)
    (Court of Criminal Appeals of Texas.
    May 15, 1918.)
    CRIMINAL Law <§^>1131(5) — Appeal—Escape —Dismissal—Statutes.
    Under Code Cr. Proe. 1911, arts. 912, 913, providing that if defendant, pending appeal in a felony ease, shall escape from custody, the jurisdiction of the Court of Criminal Appeals ' shall no longer attach, and the appeal be dismissed, but 'that the order dismissing appeal shall be set aside if it .shall be made to appear that defendant voluntarily returned to the custody of the officer from whom he escaped within ten days, etc., where defendant, convicted of burglary and sentenced, escaped from jail while his case was pending on appeal in ■the Court of Criminal Appeals, his purpose being to escape permanently, and he did not voluntarily return or offer to do so, his appeal must be dismissed on motion of the Attorney General.
    Appeal from District Court, Hale County; R. C. Joiner, Judge.
    C. E. Gibson was convicted of burglary, and he appeals.
    Dismissed.
    W. W. Kirk, of Plainview, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PKENDERGAST, J.

Appellant was convicted of burglary on' August 31,1917 and his punishment assessed at two years in the penitentiary. He perfected his appeal to this court on September 22d. His appeal bond was fixed at $1,500. He was first arrested by the sheriff! of Hale county and placed in jail on June 3d on a charge of swindling. His bond on that case was fixed at $1,000. He was unable to give it, and was held in jail by the' sheriff continuously thereafter, except when he effected his escapes from jail as hereinafter stated. The Assistant Attorney General has filed a motion to dismiss this appeal because appellant broke jail and escaped after his appeal and did not voluntarily return, and therefore this court has no jurisdiction. Appellant resists this motion and claims that he broke jail and escaped “for the purpose of getting out to his uncle’s for the purpose of seeing about making an appeal bond (in this case), or why the bond had not been made, with the intention of returning to said jail.”

Before stating the facts, the law applicable will be given. Before 1876 the authority of the court to dismiss and reinstate a case because of an-escape pending appeal was in the sound discretion of the appellate court. There was no statute on the subject. Moore v. State, 44 Tex. 595. On August 21, 1876, p. 217, the Legislature for the first time enacted “that in case the defendant shall make his . ' escape from prison during the pending of the appeal, then the jurisdiction of the appellate court shall no longer attach in the case; and upon the fact of such escape being made to appear, the court shall, on motion of the Attorney General or counsel for the state, dismiss the appeal,” thereby removing all discretion the court formerly had. This act was held constitutional and valid. Gresham v. State, 1 Tex. App. 458, and other cases. Said act made no provision for a reinstatement of the appeal in the event of the voluntary return.

In Young v. State, 3 Tex. App. 385, it was shown that in October, 1877, he was convicted of a felony and appealed. On December 12th the Assistant Attorney General made, a motion to withdraw the submission and to dismiss the appeal because appellant had escaped from custody on December 8th. The motion was granted, and the appeal dismissed on December 12th. On December 19th he made a motion to set aside this dismissal and reinstate the case because on December 17th, without having been arrested by any one, lie voluntarily returned and surrendered himself to the custody of the sheriff, and was then safely confined in the jail to await the decision of his case by this court. His affidavit to the above effect was supported by the affidavits of the sheriff and one of his deputies. There were other matters in the respective affidavits, but are unnecessary to here state. It is thus seen that he voluntarily returned and surrendered within ten days of his escape, and that after his surrender he was held in jail. This was the first case "decided by this court after said act of 1876. This court therein held:

“We are of opinion that it would be a dangerous precedent, and one which would tend utterly to abrogate the provisions of the law with regard to escapes, for this court to exercise the authority of granting the proposed relief under the circumstances of this case. The law is ‘that, in case the defendant shall make his escape from prison during the pending of the appeal, then the jurisdiction of the appellate court shall no longer attach in the case; and, upon the fact of such escape being made to appear, the court shall, on motion of the Attorney General or counsel for the state, dismiss the appeal.’ Acts 15th Leg., p. 217. The dismissal of the case put an end to the jurisdiction of this court over it, and no good cause has been shown why (if possible after it is once lost) we should resume it again. It may appear to be a hardship upon appellant, but, if so, it is one for which no one is responsible or blamable but himself.”

The next case decided under said act was Brown v. State, 5 Tex. App. 127, wherein it was shown that Brown was convicted of a felony in July, 1878, and appealed. On October 30th, pending appeal, the Assistant Attorney General moved to dismiss the casé because appellant had escaped. On that date this court granted tire motion and dismissed the case in compliance with said act of August 21, 1876. On November 18, 1878, Brown made a motion to set aside the dismissal and | reinstate the case, clearly showing by the affidavit of two deputy sheriffs that he had voluntarily returned and surrendered to the' sheriff and was then in jail. The report of , the case does not state the number of days | elapsing between his escape and return, but says that the facts are strikingly similar to those in the Young Case. Hence we think it clear that he returned and surrendered within ten days from his escape. In the opinion \ written by Judge White the court quotes said act of 1876 and says:

“It follows that a party who has appealed in a felony case, and who effects his escape during the pendency of his appeal, does so at his peril. lie by his own act depxúves this court of its jurisdiction of his case; and, when that fact has been made to appear, and his case has been dismissed, this court has no further power or control over it”

—and overruled the motion to reinstate.

Soon after these decisions the Legislature by an act of February 21, 1S79, in adopting the Codes as reported by the revisers, enacted articles 912 and 913 of the C. C. P., which are as follows:

“Art. 912. When Defendant Escapes, Pending an Appeal. — In case the defendant, pending an appeal in a felony case, shall make his escape from custody, the jurisdiction of the Court of Criminal Appeals shall no longer attach in the case; and, upon the fact of such escape being made to appear, the court shall, on motion of the Attorney General, or attorney representing the state, dismiss the appeal; but the order dismissing the appeal shall be set aside, if it shall be made to appear that the accused had voluntarily returned to the custody of the officer from whom he escaped, within ten days.
"Art. 913. Sheriff shall Report Escape, etc.— When any such- escape of a prisoner occurs, the sheriff who had him in custody shall immediately report the fact, under oath, to the district or county attorney of the county in which the conviction was had, who shall forthwith forward such report to the Attorney General at the court to which the transcript was sent; and such report shall be sufficient evidence of the fact of such escape to authorize the dismissal of the appeal.”

Then for the first time this court was given power to reinstate a dismissed case because of escape, solely by showing voluntary return within ten days.

The first case decided by this court under said articles was Lunsford v. State, 10 Tex. App. 118. Pending appeal therein appellant escaped, and was recaptured the same day. The Assistant Attorney General made a motion to dismiss the appeal because of escape. In the opinion therein this court quoted article 894, O. C. P., which gives every convicted person the right to appeal “under the rules hereinafter prescribed,” and also stated that said article 912 was one of these rules, and through Judge Hurt, who wrote the opinion, held1:

“This is the first case arising under the Code of Criminal Procedure, as amended or changed, calling for a construction. We hold that, under this rule prescribing the defendant’s right to appeal, the jurisdiction of the Court of Appeals, although having once attached, was lost by the escape; that the jurisdiction of this court ceased to attach upon the escape of the appellant. And in order for it to re-attach, the apjiellant must voluntarily return into custody within ten days. The state would not be required to wait the expiration of the ten days before making an effort to capture the prisoner ; the presumption being that the prisoner, having escaped, would not voluntarily return into custody. Holding that the escape, ipso fac-to, ousted this court of the jurisdiction of the appeal, and that nothing save a voluntary return to custody could reinvest the court with jurisdiction, we conclude that the motion of the Assistant Attorney General is well taken”

—and dismissed the case. The law as thus held has been adhered to ever since in a great number of cases, some of them collated in 2 Vernon's Grim. Statutes, p. 875: some of these and others also cited in 1 Branch’s An. P. 0. § 591. The law as thus enacted and held by this court has been adhered to down to this very day as shown by Presiding Judge Davidson’s opinion in Gilbert v. State, 203 S. W. 892, handed down qn May 1, 191S.

Said motion of the Assistant Attorney General to dismiss is supported by the affidavits of J. O. Terry, sheriff of Hale county, W. W. Jeff us, his deputy, and D. M. Thomas, a private citizen. These affidavits show: That the sheriff arrested appellant on June 3, 1917, on a charge of swindling. That his bond therein to await action by the grand jury was fixed by the examining court at $1,000. That appellant was unable to make that bond, and hence ivas placed and held in jail by the sheriff. That on June 8th appellant made liis escape from jail. That as soon as the sheriff learned it he and said deputy and a posse of citizens began a search for him to capture him. The sheriff offered a reward of $25 for his capture. That upon breaking jail he left on foot. When captured by the sheriff of Oldham county on June 17th he had worked his way north about 120 miles. When captured he ivas in possession of a horse and saddle. Later he was indicted in Swisher county in two indictments for tho theft of said horse and saddle which were alleged to have been stolen after his escape and before his capture. That the sheriff of Hale county got appellant from the sheriff of Oldham county soon after his capture and brought him back, and again placed him in the Hale county jail. That on August 11th the grand jury of Hale county returned two indictments against appellant, one for the burglary of the residence of W. E. Hunt and the other for the burglary of the residence of Basil Fruin, both offenses alleged to have been committed after his escape on June 8th and before his said capture by the sheriff of Oldham county. That on August 25th said grand jury returned an indictment against him on said original charge of swindling. That on August 30th appellant was tried on said charge of burglary of Fruin’s residence, this case, and he was convicted and his punishment assessed as stated. The appeal bond was fixed at $1,500. Upon his conviction he was again placed In the sheriff’s custody and confined by him in the jail.

The facts and circumstances of his escape end capture, after his appeal herein, was shown to be as follows: That on October 1st he made his escape from jail by breaking the lock and opening the doors with iron rods evidently placed in the jail from the outside by unknown persons. That he with other prisoners got out about 10:30 o’clo.ck in the morning, while the jailer and sheriff’s force were away. That immediately upon learning of the escape the sheriff offered a reward of $25 for tlio capture of each escaped prisoner. Thereupon a number of citizens joined the officers in the chase for the escaped prisoners. That about 5 o’clock that evening appellant and another prisoner, Tom Duke, who had been convicted for arson and his punishment assessed at five years, and who on this occasion made a final getaway, were found out in a cornfield about a mile and a half from the city limits. When discovered they were hiding under some weeds with their shoes off. They jumped up and ran. Appellant stopped long enough to slip on his shoes without fastening them while Duke ran without his. They ran in different directions. The persons discovering appellant chased him for several hundred yards. He was gaining on them and about to make his getaway, when, while looking back at his pursuers, he ran into another group of men, who captured and brought him back. That appellant in the presence of said affi-ants and other citizens of the city said that he and Duke had planned to stay in the cornfield hid until night and then make a final effort to escape. That he would have gotten away that time if he had not stopped long enough to put on his shoes when first discovered, and had run without them, as Tom Duke did, who was not captured. That appellant did not voluntarily return, but was captured while trying to get away as stated. To his resistance of the state’s motion he has attached affidavits of himself, his attorney, and some others. In neither of them is the fact of his escapes, as substantially stated by the sheriff, his deputy, and Thomas, denied or disputed. Nor are the facts of the various indictments stated by the sheriff against him denied or disputed. Nor what he stated to those parties and other citizens at the time of his flight, when discovered hidden, and his statement of why he did not get away at the time. But he claims in his affidavit that his breaking jail and escaping on October 1st was “for the purpose of going out to his uncle's for the purpose of seeing about the appeal bond, or why the bond had not been made, with the intention of returning to said jail.” These affidavits are about other collateral matters also.

The sheriff and his deputy by another affidavit stated: That at the time and before appellant’s said escape on October 1st he (appellant) well knew that his uncle and brother could not make bond for him. That at the ■time he was held under four separate and distinct cases. The bond in each of three of them was $500 -and in this case $1,500 aggregating $3,000. That when he was first placed in jail on said charge of swindling and his bond fixed at $1,000 his uncle and brother at that time tried to make that bond for him, but could not. That neither of them were taxpayers, and appellant knew neither of them would be accepted on any bond. That during the time he was trying to make said $1,000 bond his father, who lived without the state, came down and spent a number of days trying to arrange to make it, but could not. That his uncle and brother lived in Hale county and had often been to see appellant while he was in jail, and appellant well knew that he could see them at any time he wanted to. That the sheriff or some of his deputies would have sent for them at any time he jnade such request. That neither his brother nor uncle owned land and had nothing subject to execution, and appellant well knew this as the matter had been talked in his presence when they were trying to make his said $1,000 bond, and he well knew that before his said escape they had made all possible efforts to secure a bond for him, but had failed.

Upon the thorough consideration of all the affidavits it is clearly shown that appellant escaped on October 1st, while his case was pending on appeal in this court; that he did not voluntarily return or offer to do so; that his purpose in escaping was not to see his uncle about making his appeal bond; and that he had no intention of voluntarily returning, but that, on the contrary, his intention was to make his getaway and not return to jail. So that under the law and facts the state’s motion to dismiss is well taken.

Appellant cites and relies only upon Leonard v. State, 53 Tex. Cr. R. 187, 109 S. W. 149. That case is directly in conflict with the other well-considered cases by this court, and is directly in conflict with the plain provisions of the statute. Even that opinion states that, “We have had some doubt as to whether we ought to dismiss the appeal.” However that may be, that case is inapplicable to this, for therein it was shown, and seems not to have been controverted, that ap; pellant escaped with no intention of going away, but solely and only for the purpose of getting out to make bond and with the intention of surrendering himself to the due process of law. In this case, while appellant made such a claim, the facts are directly against him and show the reverse of his contention. Therefore this court has no jurisdiction of his case, and it is dismissed.
      <®=5>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    GRACE v. STATE.
    (No. 5015.)
    (Court of Criminal Appeals of Texas.
    May 22, 1918.)
    1! Labceny <&wkey;27 — Receiving Stolen Goods &wkey;>4 — -Theft op Hogs — Assistance in Disposal.
    If defendant only assisted one who killed the hogs of another in taking the hogs home after they were dead, he was not guilty of theft of the hogs, or even of receiving live hogs.
    2. Receiving Stolen Goods <&wkey;3 — Knowledge op Tiiept.
    Defendant was guilty of receiving dead hogs that had been stolen by another only if he knew the hogs were stolen when he assisted the other in taking them home after they ha'd been shot.
    3. Criminal Law &wkey;413(2) — Evidence — Statement by Dependant.
    In a prosecution for hog theft, the whole of defendant’s statement to an officer, who came with a search warrant to his house looking for the hogs, explanatory of defendant’s nossession, was admissible, the state having introduced part of it, and part of it should not have been excluded on the ground such part was self-serving.
    4. Larceny <&wkey;55 — Guilt — Sufficiency op Evidence.
    In such prosecution, circumstantial evidence held insufficient to connect defendant with the original taking of the hogs by another, or to show that he committed the theft.
    Appeal from District Court, Polk County; J. Llewellyn, Judge.
    Tom Grace was convicted of hog theft, and he appeals.
    Reversed and remanded.
    McKinnon & Campbell, of Livingston, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of hog theft; his punishment being assessed at three years’ confinement in the penitentiary.

This is a case purely of circumstantial evidence. The state’s case is that appellant and De Loach were found in possession of two dead hogs at night, alleged to be the property of Alabama White. Alabama White testified that she had nine “killing” hogs; that these hogs came up every evening and she fed and slopped them, as she also did in the morning; and that they ranged around a lake near where she lived during the day. On this particular evening only seven of the hogs returned; two of them did not. These are the hogs supposed to have been found in possession of appellant and De Loach that night. The evidence further shows that the hogs were shot. The defendant’s case is íhat he had nothing to do with the killing of the hogs, and was not present; that after they were killed De Loach came to him and asked him to go with him; that he did so, and when they reached the lake he ascertained the fact that De Loach wanted him to help carry the two hogs home. These proved to be the two missing hogs of Alabama White. These hogs were evidently killed some time during the evening and before the seven hogs returned to the Alabama White residence. Appellant’s evidence further shows that he went at the request of De Loach to assist him; ' that he had nothing to do with the original capture; and that the hogs were dead when he and De Loach went to where they were and had been dead for some time. The evidence further shows that De Loach was armed, something like 3 or 4 o’clock in the evening, with a single-barrel shotgun; that he went in the direction of the lake, and shortly thereafter, about 4 o’clock, two gunshots were heard about where the hogs were found dead. It is further shown that appellant was working Durden’s team on the Onalaska farm, plowing a pair of mules, and at sunset he came from the field with the mules and put them up and went home. De Loach was at his house upon his arrival. From there they went and got the hogs. The state did not undertake to connect appellant with the original taking otherwise than by his joint possession of the hogs after they were dead several hours.

The court did not charge upon circumstantial evidence, nor did he instruct the jury with reference to appellant receiving dead hogs; in fact did not charge upon the issue of receiving stolen property. If appellant was only assisting De Loach in taking the hogs home after they were dead, he could not be guilty of theft of the hogs, or ■even of receiving live hogs. He would only be guilty of receiving dead hogs, if he knew the hogs were stolen. When the officer went with a search warrant to appellant’s house looking for the hogs he made a statement to the officer, some of which was excluded on the ground that it would be self-serving statements. This testimony, if it is offered upon another trial, should be admitted in reference to statements made to the officer about these hogs. The state having introduced part of it, he was entitled to the whole conversation with reference to it explanatory of -his possession.

We are of opinion that the testimony is not sufficient to connect appellant with the taking of the hogs. The state- offered no testimony controverting his alibi at the time of the capture of the hogs, or to disprove the fact that he was working on the Onalaska farm at the time of the killing of the hogs by De Loach. There was no evidence of any conspiracy between them otherwise than has been stated. We' are of opinion that as the record presents the case the evidence is not sufficient to connect him with the original taking, or show that he committed the theft.

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


author: MORROW, J. MORROW, J.

text:
    FAUBIAN v. STATE.
    (No. 4924.)
    (Court of Criminal Appeals of Texas.
    April 10, 1918.
    On Motion for Rehearing, May 29, 1918.)
    1. Homicide <&wkey; 120 — Assault to Murder— Self-Defense.
    In a prosecution for assault to murder, where prosecuting witness was doing no act which, viewed from defendant’s standpoint, manifested any intention of doing him harm, the issue of self-defense was not raised, though prosecuting witness had previously struck defendant with his fist, after which he retreated.
    2. Homicide &wkey;>120 — Self-Defense —Pursuit — Guilt of Assault.
    Where prosecuting witness struck defendant on the head with his fist, but when defendant drew his pistol retreated, and was fired at by defendant after he had got some distance up the street, and after he had gotten into an automobile and started away, defendant was guilty of an assault.
    3. Homicide <&wkey;166(3) — Evidence—Motive.
    In a prosecution for assault to murder, resulting in conviction of aggravated assault, if the state had been able to prove that defendant had been named as corespondent in a divorce petition which the assaulted person had filed against his wife, the fact would not have been admissible in the absence of circumstances bringing it to defendant’s knowledge.
    4. Criminal Law <&wkey;>706, 1170%(5) — Conduct of Prosecuting Attorney — Examination of Accused — Question Tending to Prejudice.
    Where there was no evidence that defendant had maintained improper relations with the assaulted person’s wife, and there was no evidence that defendant was named in the assaulted person’s divorce proceedings against her, the state’s question to defendant as to whether he had been named in the divorce petition as corespondent or the cause of separation by reason of his association with the assaulted person’s wife was improper and prejudicial.
    5. Homicide <&wkey;340(2) — Appeal — Prejudicial Error.
    The state’s improper question to defendant as to his being named as corespondent in the assaulted person’s divorce petition against his wife, and the instruction on self-defense, in the absence of evidence that defendant provoked the difficulty, were prejudicial error calling for new trial.
    On Motion for Rehearing.
    B. Criminal Law >&wkey;730(3) — Improper Conduct of Attorney — Duty of Court.
    In a prosecution for assault to murder, resulting in conviction of aggravated assault, if the state was within its rights in asking defendant as a witness whether he had been named as corespondent in the assaulted person’s divorce petition, the trial court should have corrected the injurious effect of such question by withdrawing it from the jury on request.
    Appeal from District Court, McLennan County; J. W. Taylor, Jr., Special Judge.
    Clyde Fauhian was convicted of aggravated assault, and he appeals.
    Reversed.
    Jno. B. McNamara, Co. Atty., and D. C. Woods, Asst. Co. Atty., both of Waco, and E. B. Hendricks, Asst. Atty. Gen.,. for th'e State.
   MORROW, J.

Appellant was indicted for assault with intent to murder on one Garrett, convicted of aggravated assault, and his punishment fixed at a fine of $400.

Appellant owed Garrett an account. Garrett had met him some two weeks before the difficulty, and demanded payment. On the occasion of the difficulty appellant had started to his place of business with a hammer in his hand, and was invited by one of the witnesses to ride to town in his car. The witness told appellant he was going to get gasoline at Garrett’s garage, stopped his car for that purpose, and asked appellant to get .out so the tank which was under the seat might be filled. One of Garrett’s employés was attending to the gasoline, and Garrett, who was in the rear of the building, came out and began a conversation with appellant about the account, demanding payment in quite peremptory language, and, as state’s witnesses described it, in a very earnest manner. Appellant said that he had no money to pay the account, and, further, that the account was not right, and demanded of Garrett that he take his hands out of his pockets. Garrett struck appellant a blow on the head with his fist and cut a gash about half an inch long and about one-eighth inch deep, which bled and which appellant says dazed him. About the time the blow was struck appellant drew his pistol, state’s witnesses claiming he was drawing at the time he was struck. I-Ie made an effort to shoot Garrett, who dodged around the car, and appellant was warned by a witness not to shoot Garrett, as he was unarmed. Garrett finally ran and was fired at by appellant twice, once after he had got some distance up the street and again after he had gotten into an automobile and started away.

The court charged the jury on assault to murder, aggravated assault, self-defense, adequate cause, and provoking the difficulty. We do not think the issue of provoking the difficulty was raised by the evidence. There are several assignments criticizing the charge of the court and the special charge given at th'e request of the state.

• At the time the shots were fired Garrett was not only retreating, but was doing so hurriedly, and had reached a point some distance from appellant at the time the first shot was fired, and had increased the distance and was fleeing from him in an automobile at the time the second shot was fired.

It is evident from all the testimony, including that of appellant, that at the time the shots were fired deceaséd was doing no act which, viewed from appellant’s standpoint, manifested any intention of doing Mm harm, and in our opinion the issue of self-defense was not raised. Lynch v. State, 24 Tex. App. 350, 6 S. W. 190, 5 Am. St. Rep. 888; Hinton v. State, 24 Tex. App. 450; Bush v. State, 40 Tex. Cr. R. 543, 51 S. W. 238; Branch’s Cr. Law, § 462.

It was apparent that appellant was guilty of an assault, the grade and amount of punishment to be determined by the jury.

While appellant was testifying as a witness counsel for the state was permitted, over objection, to ask him if he had not been named in a divorce petition, which the prosecuting witness, Garrett, had filed against his wife, as the corespondent or cause of said separation, by reason of his familiarities and associations with the prosecutor’s wife. The appellant answered this question in the negative. It appears from the prosecuting witness’ testimony that he had nothing against appellant; that he did not like him, and it seems clear that at the time the difficulty began appellant’s presence at the place was incidental to his riding to town with the witness Mayfield; that the meeting* was brought about by Garrett; and that his conduct was aggressive and his language insulting. There was no evidence that appellant had maintained improper relations toward the wife of Garrett, nor was there any evidence that in the divorce proceedings appellant was named. It tended to put appellant in a bad light before the jury and if the state had been able to prove the fact it would not, under the circumstances, have been admissible, in the absence of some circumstances bringing it to appellant’s knowledge. Darnell v. State, 58 Tex. Cr. R. 585, 126 S. W. 1122; Daniels v. State, 71 Tex. Cr. R. 061, 160 S. W. 707. The action of the prosecuting attorney in asking the question was prejudicial to the appellant, and the court was in error in permitting it, and not instructing the jury to disregard it. Vick v. State, 71 Tex. Cr. R. 50, 159 S. W. 50; Hodges v. State, 73 Tex. Cr. R. 378, 166 S. W. 512; Vernon’s C. C. P. p. 395, and cases cited.

While the issue of self-defense was not in the ease, the fact that the court, in the absence of evidence that appellant provoked the difficulty, instructed the jury on that subject was calculated to indicate to the jury that in the mind of the court there was evidence that appellant was in the wrong from the beginning. This, together with the improper question mentioned above, was prejudicial to the appellant, and may have been an element in enhancing the punishment assessed. Because of them we believe the court should have granted a new trial, and his failure to do so will require a reversal of the judgment of the lower court, which is ordered.

PRENDERGAST, J., absent.

On Motion for Rehearing.

MORROW, J.

Responding to the very earnest and carefully prepared motion for rehearing filed by state’s counsel, we have reexamined the questions passed upon, hut are unable to reach the conclusion that a proper disposition of the case was not made. The suggestion by state’s counsel that the facts present an issue of self-defense cannot be sustained. There is evidence that Garrett assaulted appellant,’ and evidence that his conduct was such as to justify the conclusion, from appellant’s standpoint, that Garrett was about to assault appellant at the time he drew his pistol. The shots were not fired by appellant then, and were not fired until after - Garrett had manifestly abandoned any effort to continue the assault upon appellant, or to get into a position to renew it. As presented by the record, that the shots were fired after Garrett had abandoned any assault that he had made we think is manifest. Bordeaux v. State, 58 Tex. Cr. R. 61, 124 S. W. 640.

The charge authorizing the jury to pass upon the issue of provoking the difficulty is without support in the facts.

The suggestion that it was permissible for state’s counsel to ask appellant if he had not been named by Garrett, the prosecuting witness, in a divorce petition as the cause of the separation between Garrett and his wife on the issue of motive we think is not sustained under the facts of the case. Whether appellant had been so named was a fact of which the state’s counsel manifestly had knowledge before he asked the question. When he asked appellant if he had not been so named appellant replied in the negative. This reply was accepted without controversy. It, therefore, appears from the record here that appellant had not been so named. The right of counsel to make inquiries to ascertain the truth is unquestioned, but his right to ask questions suggesting the existence of facts which tend to reflect upon the accused, when in truth the facts do not exist, rests upon a quite different basis. Bullington v. State, 78 Tex. Cr. R. 187, 180 S. W. 679. Granting, however, that counsel for the state was well within his rights in asking the question mentioned, it is clear that the trial court should have corrected, as far as possible, its injurious effect by withdrawing it from the jury on request. Instances of reversals because there was put before the jury suggestions as to the existence of damaging facts by questions are to be found in the cases of Baines v. State, 43 Tex. Cr. R. 490, 66 S. W. 847, and Wyatt v. State, 58 Tex. Cr. R. 115, 124 S. W. 929, 137 Am. St. Rep. 926. Other cases on the subject will be found collated in 2 Vernon’s Crim. Stats. p. 906, note 43.

The motion for rehearing is overruled.
      <§=>For other cases see same topic aud KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MORROW, J.

text:
    BROWN v. STATE.
    (No. 5044.)
    (Court of Criminal Appeals of Texas.
    May 22, 1918.)
    1. Criminal ■ Law <&wkey;1141(2) — Appeal—Presumptions. ■
    The legal presumption is in favor of the trial court’s ruling as to admissibility of evidence, and accused must, by tbe facts in his bill of exceptions, overcome such presumption. 2. Criminal Law <&wkey;1100(9) — Harmless Error — Opinions.
    In prosecution for murder, witness’ statement that deceased was “all bunged up with rheumatism” was not one requiring reversal because the witness was not a medical expert.
    Appeal from District Court, Kaufman County; Joel R. Bond, -Judge.
    Steve Brown was convicted of murder, and he appeals.
    Affirmed.
    Huffmaster & Huffmaster, of Kaufman, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was convicted of the murder of George Jackson, and the death penalty assessed against him. His written confession was introduced, as follows:

“I had been staying with George Jackson since last Monday. I bought some household goods from him, and carried them away yesterday and sold them. George missed a smoothing iron, and thought I got it, and we talked about it, but made everything all right. The conversation occurred last night about 9 o’clock. He had told me about two or three hours before this that we were going to have some trouble about this iron, and when I left Mr. Bird’s, where I work,- I carried a butcher knife with me. We went to bed about S or 9 o’clock, and this morning about 3 or 4 o’clock I got up out of bed, and George got up, and I hit him with an axe, knocked him down, and beat him over the head several times with the axe, and then cut his throat with the butcher knife. There was not a word spoken between George Jackson and myself before I hit him with the axe. After I had killed George Jackson I threw the axe under the house, and I carried the butcher knife back to Mr. Bird’s and washed the blood off.”

There was corroboration. One witness said:

“We found the deceased with his head mighty near cut off, and his head just beaten to a jelly and face cut up some.”

An axe was used and found from information given by appellant and was quite bloody. Appellant immediately after the homicide went to the house of a friend about 5 o’clock in the morning, and told that he had killed deceased, and exhibited a knife, which was afterwards found. Appellant expressed to this witness his intention to flee, but subsequently said that in effect he would stay for fear his departure would arouse suspicion against him. At the time mentioned he had on some clothes that were bloody.

There are two questions raised. One of these reserves exception to the evidence of a witness, who testified:

“I would take the deceased, ■ George Jackson, to be about 60 or 65 years old; he was just an old worn-out negro, looked like to me, and he was all bunged up with rheumatism.”

The objection urged was that the evidence was irrelevant, immaterial, prejudicial, and opinion. -The other bill complains of testimony as follows:

•“George Jackson was a badly crippled and old negro, that was his physical condition.”

To this the same objection is urfed.

Neither of these bills set out any surrounding facts showing the connection in which the evidence was admitted. Neither complies with the rule which requires an exception to the admission of evidence to be sufficiently explicit to enable the court to fully understand and know all the facts on which the correctness or error of the ruling depends. See Branch’s Ann. P. O. p. 132; Eldridge v. State, 12 Tex. App. 208; Livar v. State, 26 Tex. App. 115, 9 S. W. 552; Harris v. State, 67 Tex. Cr. R. 251, 148 S. W. 1074. Many decisions of this court support the rule that the legal presumption is in favor of the correctness of the trial court’s ruling, and that it is incumbent upon appellant by the facts in his bill of exceptions to overcome this presumption. Moore v. State, 7 Tex. App. 20; Edgar v. State, 59 Tex. Cr. R. 256, 127 S. W. 1053; James v. State, 63 Tex. Cr. R. 77, 138 S. W. 612. We, in. view of the extreme penalty, have carefully read the statement of facts in connection with the bills.

It is possible that the trial judge regarded the allusion in appellant’s confession to the complaints made by deceased and the anticipated trouble, in connection with the statement that deceased got out of bed at 3 or 4 o’clock in the morning before the homicide took place, as affording a reason for the state to show the age and physical condition of deceased. The statement that the deceased was “all bunged up with rheumatism” is no l one requiring a reversal because the witness who used it was not a medical expert. If the testimony was receivable at all, it was on the ground that the deceased appeared disabled, and the specific ailment which disabled him was incidental only. Reference to the case of Clayton v. State, 201 S. W. 172, is made, in which it is suggested that evidence that deceased in that case was nearly blind should not be received unless this physical defect is known to appellant. The case was one in which the accused attempted to justify the homicide on the ground of self-defense on apparent danger, offering in part upon this issue peculiar conduct of the deceased. The state, explaining this conduct, showed that the deceased’s' eyes were defective, and that his conduct would be attributable to that and .not to any hostility towards the appellant in that case. The statement in the opinion is made in accord with the established rule that one justifying the homicide on the ground of self-defense is to be tried from his standpoint, and that matters of which he was ignorant would not be admissible against him. The physical defects of the deceased in the instant case were doubtless not unknown to appellant. Their character and the fact that the two parties lived together would indicate the contrary. MoreoveitV the bill of exceptions does not show that appellant was ignorant of the physical condition of deceased, nor is the issue of self-defense raised; in fact, there are no controverted issues in the case. The evidence is all one way, pointing to a homicide attended with no palliating facts or mitigating circumstances, and if that complained of was shown inadmissible, it would not justify reversal. Miller v. State, 31 Tex. Cr. R. 609, 21 S. W. 925, 37 Am. St. Rep. 836.

The complaints of the admission of the testimony stated in the imperfect bills mentioned have been looked to solely because of the assessment of the extreme penalty, to the end that the judgment might not be executed if the record indicated that injustice was done, even though the complaint of it was made in incomplete bills of exception.

Finding no such injustice and no reversible error, the judgment of the lower court is • affirmed.
      &wkey;>For other cases see same topic and KBY-NUMBER in all Key-Numbered Digests and Indexes

      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PREN1DERGAST, J.

text:
    HUBERT v. STATE.
    (No. 4592.)
    (Court of Criminal Appeals of Texas.
    Oct. 10, 1917.
    Rehearing Denied June 5, 1918.)
    Juby <&wkey;8&wkey;METHOD or Drawing.
    Where the officers, as prescribed by law, drew 150 jurors for a special venire, of whom the sheriff served 92, the others being out of the county or not found after diligent search, and none were excused before the case was called for trial, and only those having legal exemptions were excused after that, save those excused by consent of the parties, and no juror was forced upon defendant, who did not exhaust his challenges, there was no error.
    Appeal from Criminal District Court, Travis County; James it. Hamilton, Judge.
    Harvey Hubert was convicted of murder, and he appeals.
    Affirmed.
    [Warren W. Moore, W. J. Crider, and Jno. R. Cox, all of Austin, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PREN1DERGAST, J.

Appellant was convicted of the murder of a small 17 year old boy still wearing knee pants, and his punishment assessed at death. He contends the evidence did not justify the infliction of the death penalty. We have carefully read and studied the testimony. Appellant’s contention cannot be sustained. The evidence was amply sufficient to sustain the verdict and the penalty. We can see no useful purpose to be served in reciting the testimony. He was twice tried in the district court. Both juries assessed the death penalty.

The court below ordered a special venire of 150 jurors. The officers, as prescribed by law, drew from the wheel this number, and the writ was issued to summon them. The sheriff succeeded in serving only 92 of them. Because of this appellant made a motion to quash the venire, which was overruled. In approving the bill on this subject the court did so with this qualification:

“There was 92 jurors summoned, and those not summoned were returned by the sheriff as being out of the county or not found after due diligent search and inquiry. No jurors were excused by the court before the case was. called for trial, and the court only excused those from the special venire, after the case was called for trial, who had legal exemptions under the law; the balance of the jurors excused were excused by consent of the parties. No juror was forced upon the defendant, nor did defendant exhaust his challenge. The original venire was drawn from the jury wheel in a manner provided by law.”

This bill presents no error.

Appellant, in his motion for new trial, did not attack the verdict of the 'jury for anything that would have invalidated it, but sought to have the court to investigate from the jurors how and why they had assessed the death penalty. ' Notwithstanding the court properly held there was no such attack of the verdict of the jury as to require him to make any such investigation because the death penalty had been assessed, he permitted the appellant to introduce the jurors and others to testify on the subject. None of the testimony in ,th©' slightest way tended to show any improper action by the jury.

As stated, we have carefully read this record. Without doubt it shows that appellant had a fair and impartial trial in every particular. The evidence was amply sufficient to sustain the verdict.

We cannot do otherwise than affirm the judgment, which is hereby ordered.


author: DAYID’SOÑ, P. J.

text:
    BOYD v. STATE.
    (No. 5040.)
    (Court of Criminal Appeals of Texas.
    May 22, 1918.)
    Criminal Daw <&wkey;1131(5) — Appeal—Escape —Dismissal.
    Where appellant from conviction of murder, as appears by the affidavit of the deputy sheriff and jailer, made his escape from jail by overpowering the jailer, and whs later arrested and returned to custody, motion to dismiss the appeal will be sustained.
    Appeal from District Court, Bowie County ; H. F. O’Neal, Judge.
    Walter Boyd was convicted of murder, and he appeals.
    Appeal dismissed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAYID’SOÑ, P. J.

Appellant was allotted a term of 20 years in the penitentiary under conviction for murder. It is made satisfactorily to appear by the affidavit of the deputy sheriff and jailer that appellant made his escape from, jail by overpowering the jailer, and was later captured. He did not voluntarily return, but was arrested. The motion of the assistant attorney general to dismiss for this reason will be sustained. *

The appeal therefore will be dismissed.
      <&wkey;>For other cases see.same topic and KEY-NUMBER m all Key-Numbered Digests and Indexes


text:
    CASEY v. STATE.
    (No. 5041.)
    (Court of Criminal Appeals of Texas.
    May 22, 1918.)
    Ceiminal Law <&wkey;1094 — Appeal—Absence or Bill or Exceptions.
    The record being before the court on appeal without a statement of facts or bill of exceptions, the judgment will be affirmed; there being nothing of moment to require consideration.
    Appeal from District Court, Bowie County; H. P. O’Neal, Judge.
    Bennie Casey was convicted of robbery, and lie appeals.
    Affirmed. '
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of robbery, his punishment being assessed at five years’ confinement in the penitentiary. The record is before us without a statement of facts or bill of exceptions. There is nothing of moment to require consideration.

The judgment will be affirmed.


author: PRENDERGAST, J.

text:
    RICKS v. STATE.
    (No. 5035.)
    (Court of Criminal Appeals of Texas.
    May 22, 1918.)
    Criminal Law <&wkey;742(l) — Credibility and Weight op Witnesses — Questions for Jury.
    The credibility of all the witnesses, and the weight to be given their testimony, were for the jury.
    Appeal from 'District Court, Galveston County; Clay S. Briggs, Judge.
    A. C. Ricks, was convicted of robbery, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of robbery, and assessed the lowest punishment.

The sole contention is that the evidence is too uncertain and insufficient to sustain the conviction. The statement of facts has been carefully read. Clearly the evidence of the state’s witnesses was amply certain and sufficient to sustain the conviction. It is true the testimony of defendant and some of his witnesses disputed the testimony to some extent of the state’s witnesses. The credibility of all the witnesses, and the weight to be given to their testimony, was for the jury. The jury evidently believed the state’s witnesses and disbelieved appellant and some of his witnesses. There is no necessity of detailing the testimony. It would serve no useful purpose in this or any other case.

The judgment is affirmed.


text:
    BERRY v. STATE.
    (No. 4854.)
    (Court of Criminal Appeals of Texas.
    Jan. 30, 1918.
    On the Merits, Feb. 27, 1918.
    Rehearing Denied June 5, 1918.)
    1. Ball <&wkey;72 — Appeal — Recognizance — , Amendment.
    Where one convicted of a misdemeanor entered into a recognizance without sureties, but deposited money equal to the amount of the recognizance, the appellate court has no jurisdiction of the appeal, under Code Or. Proc. 1911, art. 920, but the appellate court may allow the appellant to amend by filing new bond or recognizance under article 923.
    On the Merits.
    2. Intoxicating Liquors <&wkey;236(13) — Liquid Sold — Prooe.
    In prosecution for selling intoxicating liquor, evidence held sufficient to sustain finding that liquid sold was whisky, and not cider, although no one tasted it.
    3. Criminal Law <&wkey;1056(l) — Exceptions— . Instructions.
    In misdemeanor case, refusal of requested charge on circumstantial evidence cannot be reviewed, where there was no exception to the given charge for omission to charge on circumstantial evidence.
    4. Judges <&wkey;49(l) — Disqualification — Prejudice.
    Conditions given by Const, art. 5, § 11, for disqualification of a judge are exclusive, and prejudice of judge is not a ground for disqualification.
    5. Jury <@=72(6) — Summoning Talesmen — Officer.
    That a constable, who was a witness in a criminal case, summoned the talesmen was not error, especially in view of a qualification of the trial judge that the constable had been legally designated by the sheriff as the officer in attendance upon the court.
    6. Criminal Law <&wkey;364(2) — Res Gestas — Statement by Accused.
    In prosecution for selling intoxicating liquor, where witness went twice to defendant before getting liquor, a statement of defendant the first time that the whisky would be $1.25 a pint was admissible as part of the res gestae.
    7. Intoxicating Liquors <&wkey;233(2) — Contents or Bottle — Evidence.
    Where liquor defendant was selling was taken out of a box in a basket, evidence that the basket containing the box and bottles was after-wards examined on the same day and found to •contain 11 bottles of whisky was admissible on an issue as to the contents of the bottle sold.
    8. Witnesses <§^269(10) — Cross-Examination — Scope.
    Where county attorney testified that he received a pint bottle from prosecuting witness; that the next morning the defendant came in and told him that if he would open the bottle he would find it was not whisky; that when he looked he found it was.broken, and the liquid spilled smelled like cider — an effort to prove on cross-examination that defendant told him he had emptied out the whisky and put in cider before he sold it was not germane to the direct examination, and an objection was properly sustained.
    9. Criminal Law <&wkey;413(l) — Self-Serving Declarations.
    In prosecution for selling intoxicating liquors, declarations of defendant that he had emptied the whisky out of a bottle, and that it contained cider when sold, were inadmissible, being self-serving.

      L0. Cbiminal Law <&wkey;1144(18) — Presumption-Motion jtor New Trial.
    Whore evidence on hearing of a motion for a new trial was not preserved by bill of exceptions or statement of facts, it must be assumed that conclusions of the trial’ judge that facts aliunde the record set up in the motion were not sustained by the evidence were correct.
    Appeal from Upshur County Court; W. H. McClelland, Judge.
    Richard Berry was convicted of unlawful selling of intoxicating liquor, and he appeals.
    Affirmed.
    Briggs & Florence, of Gilmer, for' appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   On Motion to Dismiss.

MORROW, J.

This is an appeal from a conviction for a misdemeanor. Appellant gave timely notice of appeal, and entered into a recognizance, putting in the hands of the clerk of the court trying the case a sum of money equal to the amount of the recognizance, but failed to have sureties join him therein. Subsequently during the term he sought to amend the recognizance, and appeared in court with sufficient sureties, but his request to be permitted to enter into a new recognizance was denied by the court.

In the absence of a recognizance this court has no jurisdiction of an appeal from a conviction for a misdemeanor where the appellant is at large. O. C. P. art. 020. By article 923 it is provided, however, that where a recognizance entered into within the time prescribed by law shall be determined by the court on appeal to be defective in form or substance, such appellate court may allow the appellant to amend such recognizance by filing a new bond or recognizance on such terms as the court may prescribe.

This court is without jurisdiction of the appeal, and the motion to dismiss must be granted. Permission is given to appellant, however, to enter into a new recognizance as soon as the court trying the case is in session, and the trial judge is directed to permit him to enter into such new recognizance.

On the Merits.

Appellant was convicted -of unlawfully selling intoxicating liquor in prohibited district. The offense was a misdemeanor.

The sale was charged to have been made to George Erwin. He testified: That he bought a bottle of whisky from appellant and paid him $1.25 for it. The bottle and its contents were delivered by the witness to the county attorney. Erwin did not drink any of it, nor smell it, and said he did not know what was in the bottle. The county attorney testified that after he received the bottle he put it in his desk. The seal, consisting of a label pasted over the cork, had not been broken. That on the day of the trial he found the seal broken on one side. That the appellant had come to his office and told him to open the bottle, and he would see it was not whisky, and that he then on looking at the bottle found it was broken. That near the bottle there was something spilled on the desk which smelled like cider and not like whisky; that his desk had been opened by some one who picked the lock. That the bottle was labeled “Blue Ribbon Whisky.” A witness testified that it was the color of whisky and that it “beaded” like whisky, and in his opinion it was whisky, not cider and not vinegar.

appellant’s defense, supported by his testimony, was that the liquor that he sold the prosecuting witness was not whisky, but was cider; that he had opened the whisky bottle by raising the seal and had emptied the whisky, filled the bottle with 'cider, and replaced the seal and put it in his laundry basket. There was some evidence that when Erwin first sought to purchase the whisky that he was told by appellant that it would cost him $1.25 a pint; that he did not have any at that time, but when Erwin went back later he got it. Erwin also testified that there was a basket and a box brought in, the box sitting in the basket and the whisky in the box. Subsequently, on the same day, a witness found on the premises 11 bottles similar to that in question, all labeled “Whisky.”

The appellant insists that the evidence’ does not support the conviction. We have not undertaken to quote it all. It was purely circumstantial, so far as the identity of the contents of the bottle was concerned but we regard it as sufficient to support the finding of the jury.

The appellant submitted a special charge requesting the instruction of the jury on the law of circumstantial evidence, and the refusal of this charge would not have been authorized except for the fact that, this being a misdemeanor case, and the judge certifying that there was no exception to the charge for the omission of the charge on circumstantial evidence, the point, under the authorities, is not raised. Howard v. State, 8 Tex. App. 612; Lucio v. State, 35 Tex. Cr. R. 320, 33 S. W. 358; Bennett v. State, 50 S. W. 945; Schneider v. State, 70 Tex. Cr. R. 517, 156 S. W. 944.

The appellant filed a motion to require the judge to disqualify himself on the ground that he was prejudiced and had expressed his prejudice against the appellant, and complains of the failure of the court to sustain his motion. The Constitution (article 5, § 11) names the circumstances under which a judge is disqualified to sit in a case, and the conditions named establishing his disqualification appear to be exclusive. Johnson v. State, 31 Tex. Cr. E. 461, 20 S. W. 985; Drechsel v. State, 39 S. W. 678; Benson v. State, 39 Tex. Cr. E. 56, 44 S. W. 167, 1091; Trinkle v. State, 59 Tex. Cr. R. 259, 127 S. W. 1060; Burrell v. State, 65 S. W. 914. In some states there are statutes which disqualify the judge on the ground of prejudice. Our laws appear to proceed on the theory that prejudice against an accused does not disqualify the judge from trying the case, the accused’s rights being fully protected under the Constitution, which gives him the right of a legal trial before an impartial jury and review on appeal.

A bill which complains that the constable, who was a witness in the case, summoned the talesmen, does not show error, especially in view of the qualification of the trial judge that the constable had been legally designated by the sheriff as the officer in attendance upon the court.

The court gave a charge to the jury which submitted the issues in a manner which appears not to have been subject to objection. No exceptions to the charge having been filed, the various special charges requested are not presented in a manner which would render them, subject to review.

The objection to the testimony of the witness Erwin that when 'he first called on appellant he was told by him that the whisky would cost $1.25 a pint was not subject to objection. It is part of the res geste. The fact that the basket containing the box and bottles of whisky was brought into appellant’s b'arber shop, and afterwards on the same day examined and found to contain 11 bottles of “Blue Eibbon” whisky was not subject of objection. It was admissible as a circumstance on the issue raised as to the' contents of the bottle in question. Myers v. State, 56 Tex. Cr. R. 223, 118 S. W. 1032. The state called the county attorney as a witness to prove by him that he had received a pint bottle-of whisky from the prosecuting witness Erwin, and had put it in his desk, and that it remained there until the morning, of the trial, when he found the seal broken; also the bottle broken. On cross-examination he testified that the appellant had come in on the morning before the trial and told him that if he would open the bottle he would find it was not whisky, and that when he looked he found it was broken, and that the liquid spilled smelled like cider and not like whisky. An effort was made to prove by the witness that the appellant told him that he had poured whisky out of the bottle and filled it with cider, and that it was not whisky that he sold. -We do not think there was any error in sustaining the objection to this testimony. It would be classified as self-serving. It was not explanatory of anything that was drawn out by the state from the witness, and was therefore not germane cross-examinti.on. There are various matters set up in the motion for new trial, the existence of which would depend on facts aliunde the record. The judgment overruling the motion for new trial recites that the court heard evidence on the motion before overruling it. In the absence of the preservation of such evidence -by way of bills of exceptions or statement of facts this court is left in ignorance as to what proof was made, and must assume, in deference to the finding of the trial court, that his conclusion that the matters of fact set up in the motion were not sustained by the evidence is correct. We have made a careful examination of the entire record, together with all bills of exceptions, and as the matter is presented we find no reversible error. The evidence, while circumstantial, was, we think,- sufficient to discharge the .burden upon the -state to prove that the liquid sold was intoxicating liquor. Pike v. State, 40 Tex. Cr. R. 614, 51 S. W. 395; Black on Intoxicating Liquor, § 497; Joyce on Intoxicating Liquor, § 674.

The judgment is affirmed.

PEENDEEGAST, J., absent.
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text:
    JOHNSON v. STATE.
    (No. 4903.)
    (Court of Criminal Appeals of Texas.
    Feb. 13, 1918.
    On Motion for Rehearing, May 8, 1918.
    Further Rehearing Denied June 5, 1918.)
    1. Bail <&wkey;70 — Appeal Bond.
    Appeal bond on appeal from conviction of crime, approved only by the sheriff, and not approved also by the trial judge as required by statute, is insufficient.
    On Motion for Eehearing.
    2. Homicide <&wkey;228(3) — Corpus Delicti — Sufficiency of Evidence.
    In a prosecution for homicide, evidence held sufficient to establish the corpus delicti, although no witness testified to seeing the body after the killing, and notwithstanding Pen. Code 1911, art. 1084, requiring the finding and identification of the body.
    Appeal from District Court, Sabine County; W, T. Davis, Judge.
    Eli Johnson was convicted of homicide, and he appeals.
    Affirmed.
    Minton & Lewis, of Hemphill, for appellant. B. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

The assistant attorney general makes a motion to dismiss this appeal for want of a sufficient appeal bond. There is an appeal bond in the record, but it is only approved ffiy the sheriff. The statute requires that the trial judge shall also approve it. For this reason the appeal will not be entertained. The questions raised by the record and insisted upon for reversal will not be discussed on account of the dismissal.

The appeal is dismissed.

On Motion for Reliearing.

On a former day of the term the appeal in this case was dismissed for reasons stated in that opinion. This matter has been rectified, and the case will be reinstated.

The record, contains really but one question; that is, want of sufficient evidence to establish a corpus delicti. The majority of this court have reached the conclusion that the evidence is sufficient upon that question. We now state the strength of the state’s case revolving around the ques-: tion of corpus delicti. The state’s witness Washington, when asked where the alleged deceased, Joe Murray, was, answered: “He is dead, so they say.” This extract is taken from the testimony of Crowell: “Do you know whether the boy died or not? A. Yes, sir.” The testimony shows that appellant shot deceased, the shot taking effect just above the top of the hip. The evidence shows also that appellant shot at deceased and he fell. Washington also testified that he was working in Mr. Yarborough’s camp at the time Joe Murray was killed; “I do not remember the exact date that Joe Murray was killed.” Crowell also testified:

“I was in the camp when Joe Murray was killed. I saw the transaction there when he was killed. I was coming through there with a load of lumber, coming from Pineland. I see the plat or map on the floor there that is supposed to represent the houses and railroad and streets and the other roads near where Joe Murray was killed.”

He also testified that:

When Joe Murray walked up to the gate to go into the gate Eli stepped back about two steps and shot him. Eli had the muzzle of his gun down, “and he stepped back this way (indicating) and raised his gun and fired. , * * * After the gun fired, he fell over inside the yard, ’

He also testified as follows:

“Q. Do you know whether the boy died or not? A. íes, sir. Q. Pie died? A. Yes, sir.”

Appellant testified:

“When I shot him, he threw his hand back that way; I didn’t know whether it was going under his jumper or where it was going;' I know he threw it back, and I aimed to defend myself. I was not mad then. I was cool and deliberate. I was standing up there .talking; I was inviting his mother up to the little meeting I was going to have. I was no ways angry at all. I was cool and deliberate. I did not kill that boy because he cursed me. I want to tell the jury that I didn’t kill Mm at that time because he cursed me. I didn’t intend to kill him then at all; I aimed to stop him from shooting me; I didn’t even intend to shoot when I shot.”

Witness Dan White testified:

“I know Eli Johnson. I remember the day that Joe Murray was killed. I was sitting on my gallery that day just like I am sitting here. I lived next tb Carrie McNeal at that time. I saw the transaction at the time the boy, Joe "Murray, was killed.”

He further testified:

“The boy came on up and walked up there and reached at the gate to open it, and Eli was standing there, and júst as he got inside the gate Eli just came up with the gun that way— bumb. When the boy was killed he was standing- just Eke 1 am. I do not know the position, of his hands. I just saw him faB. I saw him when he caught hold of that gate, when, he first walked up. I didn’t see him do anytMng with his hand.”

Witness also states that:

Eli backed off just about a step, and had hits gun just about in that position, and said, “ ‘Joe, you put me in the dozen,’ and the gun said, ‘Bumb,’ and the boy fell. The boy did not run around by tbe corner of the house. He didn’t run anywhere; he fell right down there.”

This is the strength of the testimony with reference to whether deceased was dead. My Brethren are of opinion' that this sufficiently proves the corpus delicti. There is no evidence in this record of any witness or anybody having seen the body of deceased after the shooting. It was at a turpentine camp where there was quite a number, of people. The mother of deceased, who was standing within a few feet of where the shooting occurred, was not placed upon the witness, stand, .and is shown, in fact, to have left: Texas and gone to another state. Why some witness was not placed on the stand who saw the body of deceased after he was killed is not explained.

Article 1084 of our Penal Code reads as follows:

“No person shall be convicted of any grade of homicide, unless the body of the deceased, or portions of it, are found and sufficiently identified to establish the fact of the death of the person charged to have been killed.”

There are quite a number of decisions construing this statute, and they are all to the same effect. These are all collated by Mr. Branch in his Annotated Penal Code, under article 1084, above quoted. It is not the purpose of the writer to review these cases.

It may be that my Brethren are correct; that the evidence is sufficient to show the deceased was killed and to comply with the article above quoted.

The mind of the writer is not clear on this subject at all, but in consonance with the opinion of the majority this judgment will be affirmed.
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