text:
    WILSON v. STATE.
    (Court of Criminal Appeals of Texas.
    May 7, 1913.)
    L Homicide (§ 276) — Questions for Juey —Self-Defense.
    On a trial for murder, where accused claimed that he mistook deceased for his brother A., with whom he had had trouble and for whom he had been warned to look out as he was armed and likely to kill him, accused’s testimony that as deceased came towards him he shifted his hat from his right to his left hand, that he was looking accused straight in the face with his eyes glaring' and walking rapidly, and that as he came rushing towards accused he made a motion back with his right hand, • whereupon accused fired, was sufficient to raise the issue of self-defense, if accused in fact thought the person approaching was A., but not if he knew that it was A.’s brother.
    [Ed. Note. — For other cases, see Homicide, Gent. Dig. § 569; Dec. Dig. § 276.)
    2. Ceiminal Law (§ 413) — Evidence — Exculpatory Circumstances Subsequent to Crime.
    On a trial for homicide, where accused claimed that he mistook deceased for A., with whom he had had trouble and for whom he had been warned to look out as he was armed and likely to kill him, where the evidence as to deceased’s acts- and conduct was sufficient to raise the issue of self-defense if accused in fact believed that he was A., and where the state sought to show that accused was acquainted with deceased and A. and could not have been and was not mistaken, it was error to exclude proof as to accused’s acts, words, and conduct upon first learning, as he claimed, that the person killed was not A., which tended to support his claim that he was mistaken as to deceased’s identity, but other conversations, after he had been informed that the person killed was not A. and had time to reflect, were properly excluded.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 928-935; Dec. Dig. § 413.]
    3. Homicide (§ 187) — Evidence—Character of Parties.
    On a trial for homicide, where accused claimed that he mistook deceased for A., with whom he had had trouble and for whom he had been warned to look out as he was armed and likely to kill him, the state was properly permitted to prove that A.’s reputation as a peaceable law-abiding citizen was good.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 390, 390y2; Dec. Dig. § 187.]
    4. Homicide (§ 188) — Evidence—Character of Parties.
    On a trial for homicide, where accused claimed that he mistook deceased for A., with whom he had had trouble and for whom he had been warned to look out as he was armed and likely to kill him, and where accused had not attacked deceased’s reputation, claimed that deceased had made any threats, nor stated that he feared or had reason to fear that deceased would harm him, and did testify that he would not have shot if he had known that it was not A., it was error to admit evidence of deceased’s good' reputation as a peaceable law-abiding citizen.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 391-397; Dec. Dig. § 188.]
    5. Homicide (§ 295) — Instructions—Manslaughter-Applicability to Issues.
    On a trial for homicide, where accused claimed that he mistook deceased for A., who had assaulted his daughter, an instruction on mam slaughter, that the act must be directly caused by the passion arising out of the provocation, and that it was not enough that the mind was merely agitated by the passion arising from some other provocation “or a provocation given by some other person than the party killed,” was inapplicable and should not have been given.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 606-609; Dec. Dig. § 295.]
    6. Homicide (§ 17) — Grounds of Excuse or Justification.
    Where accused shot deceased believing that he was A., he was entitled to all the defenses to which he would have been entitled if the person shot had in fact been A.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 23; Dec. Dig. § 17.]
    7. Homicide (§ 300) — Instructions—Self-Defense.
    On a trial for homicide, where accused claimed that he mistook deceased for A., with whom he had had trouble and for whom he had been warned to look out as he was armed and likely to kill him, and where the evidence as to deceased’s conduct at the time of the homicide was sufficient to raise the issue of self-defense if accused in fact believed that it was A., an instruction, that homicide was -justifiable when committed in necessary self-defense, that this occurred when one was attacked in such manner as to produce a reasonable apprehension of death or serious bodily injury or where it reasonably appeared from the “act or acts coupled with the words of the person killed” that the killer was thereby in danger of death or serious bodily harm, and that if he killed to protect himself from such danger or apparent danger then the killing was justifiable, was erroneous as excluding the acts and. conduct of A. from the consideration of the jury on the question of self-defense.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    Appeal from District Court, Bed River County; Ben H. Denton, Judge.
    S. C. Wilson was convicted of manslaughter, and he appeals.
    Reversed and remanded.
    Kennedy, Watson & -Robbins, of Clarks-ville, 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, charged with murder, and convicted of manslaughter.

In this case it appears that Alfred Dif-fie, a young man, called to see a daughter of appellant one Saturday night, and the next night she went to church with her parents; Alfred Diffie accompanying her home. Her mother and father getting home first, lighted the parlor, and retired to their rooms; her father undressing preparatory to retiring. Mr. Wilson says after some minutes lie heard a noise and heard his daughter calling him; he rushed in the parlor, and Alfred Diffie had his daughter on the floor, one hand over her mouth to keep her from hollering; her dress pulled up exposing her limbs, while he was down over her. Young Diffie admits that appellant came rushing into the room in his night clothes, but says he and the daughter were standing up; he merely having hold of her hands. Both agree that an altercation immediately ensued in which Diffie’s shirt and collar were torn off of him; appellant at the time calling to his wife to bring' his gun. Alfred escaped and ran off, leaving town that night and going out in the country to spend the night. It is also shown that Alfred went to the drug store and purchased some cundrums before going to Mr. Wilson’s; he testifies that he secured them to have intercourse with another party. A man in the drug store says, however, that appellant made remarks at the time indicating the party he was thinking of was appellant’s daughter. Appellant made threats to kill Alfred Diffie, but was persuaded to go to Alfred’s father, explain the circumstance to him, and ask him to send Alfred away, saying at the time if he met Alfred he felt that he would kill him. Judge Diffie did send Alfred away, bu,t he returned • home on the night of July 3d. On July 4th appellant was informed that Alfred had returned, and was warned that Alfred was armed, and was likely to kill him (appellant). He did not go to see Judge Diffie again, but sent him word that he had promised to send Alfred away, and insisted on him doing so, saying that if he met him he did not think he could control himself, but would kill him. Judge Diffie did send Alfred away on the night of July 4th, but appellant did not learn of that fact. He inquired after the 4th and before the day of the killing, and was informed by those of whom he inquired that they did not know, but thought he was still in Detroit. On Sunday, appellant, his wife, and daughter all attended church; the services being held in the tabernacle in that town. Wilmer Diffie, a younger brother of Alfred, also attended church, and sang in the choir. Appellant says he saw Wilmer Diffie and thought it was Alfred, thinking he saw Wilmer Diffie in the choir also. Several testify to appellant’s nervous condition during the services; some saying that he kept his eyes on that portion of the choir where young Diffie sat. At the close of services appellant walked to one edge of the tabernacle, and stopped, waiting for his wife. Wilmer Diffie started out also, and when he got in about eight to ten feet of appellant, appellant fired on him; the first ball apparently inflicting the death wound, striking him in the breast. , Diffie turned and ran, appellant firing at least three other shots; one of them striking Diffie in the arm, the other striking him in the back. The state’s contention is that Diffie was going towards the gate with his hat in his hand and made no demonstration whatever. Appellant contends that, when he saw Wilmer Diffie approaching him, he thought it was Alfred. To use his own language, he says: “I thought the way he was acting that it was Alfred Diffie, and I asked my wife if it was not, and she told me to hush, or pushed me down that way. If she told me whether it was or was not I did not understand her. My eyesight is bad and my hearing is bad; at times my hearing is worse than others, and my eyesight is the same way; I suffer a great deal with kidney trouble, and I have those spells often, and during those times my eyesight is bad. As I sat there during the services, I did not make up my mind fully as to whether it was Alfred or Wilmer Diffie that was in the choir; I did not make up my mind fully until after services was over. As I sat there I was restless and nervous and agitated as you say; I could hardly stay there. As I sat there and was uncertain about this boy, all the wrongs that had been done my daughter came into my mind, and looking over and seeing my daughter my mind could not be otherwise. As I sat there, I started to get up and made an effort ohce to get up and go before the services was over, and my wife pushed me down, that is, caught hold of me, sort of held me down, and says, ‘Be quiet.’ Well, I sit there, and when the services was over I gets up and starts on down the aisle. I walked a bench or two, and I turned my head around' to look to see my wife. My wife was talking to some ladies; there was two or three of them there talking together, Mrs. Dunagan and somebody else; I don’t know who the others were. And I looked at her a few minutes. I saw she had made a start to start to come on, and I turned to go on out, as I went on out at the end of the aisle, went out a step or two beyond the end of the aisle. I turned to look for my wife to come on; as I .did so I discovered who I taken to be Alfred Diffie, coming rushing around the corner of the benches coming up towards me. I passed about four feet north of this north tier of benches. As I waited for my wife, I turned my face south. When I saw Wilmer Diffie, he was coming from the southwest, that is, at the west end of the benches he had got around coming on out, got around when I first turned and saw him. I saw him swing around the post, that is, at the corner of the post coming right on. I seen him make a shift with his hat. He had his hat in his right hand, and he shifted it to his left hand and was looking me right straight in the face with his eyes glaring and was walking rapidly, and he advanced in four or five feet of me after he turned this corner. * * * He come rushing right on up stepping rapidly towards me and made a motion back with his right hand, and I shot him as quick as I could, thinking it' was Alfred. I fully 'believed it was Alfred Diffie I was shooting,- and at that time I believed he was armed and was going to kill me. The reason I killed that man at that time was the way he had outraged my daughter, and thinking that he was going to shoot me, that he was going to take my own life, I shot him.”

A closely contested issue in the case, both the state and defendant introducing many witnesses, was whether or not Alfred and Wilmer resembled to that degree that one could reasonably have been mistaken for the other. If appellant knew it was Wilmer Diffie approaching him, the slight demonstration he testifies to him making would hardly present the issue that he acted in self-defense; whiie, on the other hand, if he believed that it was Alfred Diffie thus approaching him, taking into consideration that his friends Rumbley, Heath, and others had informed him that Alfred Diffie was going armed and to keep a lookout or he would kill him, the acts, conduct, and demonstrations he testifies to would raise the issue of self-defense. The killing occurred on July 7th, just three days after Alfred had returned to Detroit.

Appellant, when he fired the shots, ran, going by home and getting another pistol, and then disappeared. Between 12 o’clock and daylight he appeared at the home of his friend P.' M. Rumbley, coming in to surrender to the officers; he giving as his reason for leaving that he knew Judge Diffie was in attendance on church and he did so to avoid further trouble, and kept out of the way until he could surrender to the officers. He says, when he got to Rumbley’s, Rumbley informed him that he had' killed Wilmer Diffie. He says this is the first time he learned that he had killed Wilmer and not Alfred; that he believed, up to this time, that it was Alfred Diffie he had shot.

Appellant desired to prove by Rumbley .his acts, words, and conduct upon being informed that it was Wilmer Diffie that he had killed. The court held this would be self-serving and excluded- the testimony. We think the court erred in this respect. It was a sharply contested issue in the case whether or not appellant believed it was Alfred, and that he had shot Wilmer by mistake. The state, to prove that he could not and was not mistaken in the identity of the two boys, asked him if Wilmer Diffie had not eaten at his home when he was present. This he denied. The state introduced witnesses to impeach him on this point, who testified that Wilmer Diffie had been to appellant’s house and took dinner there. He was asked if one witness did not .point out Wilmer to him and say, “Xonder comes Alfred now-,” and he reply, “No, that is Wilmer.” He was sought to be impeached in regard to this matter. When he testified that he thought it was Alfred when he shot, the state sought to impeach the statement by showing association; that they attended the same church, etc. We think, under such circumstances, as supporting his testimony on the trial, it was permissible to show what were his words, acts, and conduct at the time when first informed that it was Wilmer he had killed. Again, we understand the rule of law ■to be, when a person is first charged with any crime, his acts, words, and conduct are admissible, if incriminating, in behalf of the state; if explanatory, in his own behalf. It may be said he knew he had shot a man; that is true. But he says he thought he shot Alfred Diffie, and if he did so believe the facts and circumstances would present the issue of self-defense. If the jury did not believe he so thought, they would hardly be justified in finding that he acted in self-defense. The issue is clearly in the case as' to whether or not he believed, at the time he fired the pistol shot, that it was- Alfred Diffie, or knew it was Wilmer Diffie. When first {informed beyond question, or charged with killing Wilmer Diffie, he makes certain statements, which it is true will support his contention that he thought it was Alfred when he shot; but does that fact render the statements inadmissible? In theft cases, when a person is first found in possession of stolen property, and is so informed, and, in other crimes, when first charged with an offense, his explanation at the time has been held to be admissible, and we think, under both the above rfiles of law, the acts, conduct, and words of appellant, when first informed that it was Wilmer Dif-fie he had killed, should have been admitted. The rule is different, however, as to conversations had with Norris, Heath, Dr. Stiles, and Alsobrook. Prior to that time he had been informed by Rumbley he had killed Wilmer Diffie, and he had time to reflect after being so informed, and the court did not err in excluding the conversations had with these latter gentlemen.

Again, the court permitted the state to prove that the reputation of Alfred Diffie as a peaceable law-abiding citizen was good. In this we do not think the court erred. The defendant was relying on the fact that he had been informed by his friends that Alfred was going armed, and would kill him, as a justification for acting on the demonstrations, and under such circumstances it has always been held proper to prove the general reputation of such person.

However, the court erred in permitting the state to prove the reputation of Wilmer Diffie as a peaceable law-abiding citizen, or, as one witness puts it “the best boy in De-' troit.” Appellant had not attacked the reputation of Wilmer, had alleged no threats of any character as against Wilmer, nor stated that he in any manner feared or had any reason to fear Wilmer would harm him. He relied solely on the question of mistaken identity and that he thought it was Alfred he was shooting, and testifies if he liad known it was Wilmer he would not have shot. Under such circumstances, it was error to admit evidence of the good reputation of Wilmer.

While not complained of in a way that we would be authorized to act thereon, yet, as the case will he reversed, we would call the attention of the court to the following paragraph of his charge on manslaughter: “The act must be directly caused by the passion arising out of the provocation. It is not enough that the mind is merely agitated by the passion arising from some other provocation, or a, provocation given py some other person thorn, the party Icilled.” That portion which is italicized by us' is wholly inapplicable to this case. The provocation relied on to reduce the offense was given by another party than the party killed — Alfred Diffie. It was not contended that at the time of the killing, nor prior to that time, Wilmer Diffie had done anything that would cause anger, rage, or resentment, and this paragraph of the charge should be so altered as to present the issue applicable to the evidence adduced on the trial. If appellant really believed it was Alfred Diffie when he shot, then he was entitled to all the defenses he would have been entitled to if it had in fact heen Alfred Diffie.

In the charge on self-defense, if appellant believed it was Alfred Diffie, or the jury had a reasonable doubt of that fact, it should be made plain that he had the same right to act as if in fact it had heen Alfred Diffie. The omission to so inform the jury is plainly manifest in the following paragraph of the charge: “Homicide is justifiable and is no offense against the law, when committed in necessary self-defense. This occurs when one is attacked in such manner as to produce in his mind a reasonable apprehension of death or serious bodily injury, or where it reasonably appears to one from the act or acts, coupled with the words of the person hilled,, that he (the slayer) is thereby in danger of death or serious bodily injury, and he kills to protect himself from such danger, or apparent danger, then such killing is deemed to be justifiable self-defense.”

It is thus seen that the court limited it to the acts and conduct of Wilmer Diffie (the person slain), while the contention of appellant was that he was informed that Alfred Diffie was going armed, was going to kill him, and he believed it was Alfred Diffie who was approaching him, and this charge should have been so framed as to present his theory, and if the jury found that defendant believed it was Alfred Dime or they had a reasonable doubt of that fact, then he would have the same right to act as if it in fact was Alfred Diffie approaching him.

The other matters complained of present no error.

The judgment is reversed, and the cause is remanded.


source: Caselaw Access Project

author: DAVIDSON, P. J.

license: Public Domain

text:
    McKNIGHT et al. v. STATE.
    (Court of Criminal Appeals of Texas.
    May 14, 1913.)
    1. Larceny (§ 32) — Indictment — Ownership — Property Subject to Lien of Bailee.
    Where the owner of cattle placed them in the pasture of one J., who under Rev. Civ. St. 1911, § 5664, had a lien thereon for pasturage, J. was the special owner as against the real owner, and an indictment for their theft should have alleged ownership. in J. or real ownership in the owner and special ownership in J.
    [Ed. Note. — Eor other cases, see Larceny, Cent. Dig. §§ 81-92, 99; Dec. Dig. § 32; Indictment and Information, Cent. Dig. §§ 281, 282.]
    2. Criminal Law (§ 772) — Instructions — Venue.-
    In a prosecution for the theft of cattle, where the question of defendants’ possession in the county where the indictment was found was fought out before the jury on the facts, a charge failing to submit such issue was reversible error.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1812-1814, 1816, 1817; Dec. Dig. § 772.]
    3. Criminal Law (§ 792) — Instructions— —Principals.
    In a prosecution for the theft of cattle, where it was in issue whether defendants were so connected with the original taking as to be principals, the jury should have been appropriately instructed thereon.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1818-1S20; Dec. Dig. § 792.]
    4. Larceny (§ 75) — Instructions—Possession.
    In a prosecution for the theft of cattle, where it appeared that defendants were both acting as hired hands for the owner of the herd into which the stolen cattle had gotten and had no interest in the cattle themselves, the jury should have been appropriately instructed as to its bearing on their possession.
    [Ed. Note. — Eor other cases, see Larceny, Cent. Dig. §§ 190, 198; Dec. Dig. § 75.]
    5. Criminal Law (§ 371) — Evidence—Other Oeeenses.
    In a prosecution for the theft of cattle, evidence that, when defendants were making up a herd to drive for shipment, they saw strange cattle and turned them from one part of the pasture into another so as to prevent their mingling with the herd was inadmissible upon the theory that defendant, the son of the owner of the herd, had stolen them, in the absence of anything showing contemporaneous and fraudulent acts in connection with those cattle.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 830-832; Dec. Dig. § 371 ; Larceny, Cent. Dig. § 131.]
    6. Criminal Law (§§ 763, 764) — Instructions — Weight oe Evidence.
    In a prosecution for the theft of cattle, an instruction that, if they were stolen as charged and found in the possession of defendants shortly thereafter, such possession and its explanation, if any, would be proper for the consideration of the jury on the guilt or innocence of the defendants under all the circumstances was objectionable as .a charge on -the weight of the evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1731-1748, 1752, 1768, 1770; Dec. Dig. §§ 763, 764; Larceny, Cent. Dig. § 184.]
    7. Criminal Law (§ 770) — Instructions— Innocence of'Accused.
    Such charge was also objectionable as authorizing the jury to weigh the evidence in determining the innocence of defendants, since it is the guilt and not the innocence that is to be determined under such circumstances.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1806; Dec. Dig. § 770.]
    8. Criminal Law (§ 549) — Evidence—Explanation.
    Exculpatory or reasonable explanation showing innocence must be shown false, and it may be viewed or weighed in the light of all the facts and its falsity so determined.
    TEd. Note. — For other cases, see Criminal Law, Cent.Dig. §§ 1249, 1251; Dec.Dig. § 549.]
    9. Criminal Law (§ 815) — Instructions— Ignoring Evidence.
    In a prosecution for the theft of cattle, where defendant explained that he did not know the cattle were in the herd he was driving until they were pointed out to him, and did not claim them, an instruction that, if the cattle were stolen as charged and defendant was found in possession thereof, such possession and its explanation, if any, might be considered on the question of guilt was erroneous as not submitting defendants’ phase of the case.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1922, 1986; Dec. Dig. § 815.]
    10. Witnesses (§ 345) — Impeachment — Another Indictment Arising prom Same Transaction.
    In a prosecution for the theft of cattle, evidence against one of the defendants to the effect that he had been indicted in another state for the theft of the same cattle described in the indictment in the case was inadmissible, even for the purpose of impeachment.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1126-1128; Dec. Dig. § 345.]
    Appeal froDi District Court, Childress County; D. E. Decker, Judge.
    Virgil McKnight and another were convicted of theft of three head of cattle, and they appeal.
    Reversed and remanded.
    Howard & Barrett and M. J. Hathaway, all of Childress, and Walter E. Latimer, of Sulphur, Okl., for appellants. C. E. Lane, Asst. Atty. Gen., for the State.

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

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

   DAVIDSON, P. J.

The indictment charges appellants with theft of three head of cattle, the property of J. S. Pritchard.

Reversal is urged because the evidence shows ownership in D. H. Jeeter. The cattle were placed in Jeeter’s pasture by Pritchard in May, where they remained until their disappearance about the 28th of October. Jeeter saw them In his pasture on the afternoon of October 26th. The evidence by Pritchard and Jeeter is to the effect that Pritchard owned the cattle and placed them in Jeeter’s pasture for pasturage purposes in May. He was to pay Jeeter 25 cents per head a month for keeping the cattle. • Jeeter was to look after them, take care of them, and, if they got out, get them back into the pasture. At the time the cattle were taken or disappeared from his pasture, Pritchard had not paid the pasturage, for which Jeeter had a lien on the cattle. Under these circumstances Jeeter was the special owner as against Pritchard, the real owner. Article 5664 of the Revised Civil Statutes gave Jeeter a lien on the cattle for the pasturage, and Pritchard could not take his cattle until this pasturage had been paid. If Pritchard had taken the cattle surreptitiously with intent to defraud Jeeter of the pasturage, he could even have been charged with the theft of the cattle from Jeeter under the terms of article 1335 of the Revised Penal Code. The real ownership could have been alleged in Pritchard and special ownership in Jeeter, but this was not done. Ownership was alleged only in Pritchard. Under all of our authorities, ownership should have been alleged in Jeeter. Of course, as before stated, real ownership could have been alleged in Pritchard and special ownership in Jeeter. Taylor v. State, 62 Tex. Cr. R. 611, 138 S. W. 615; Littleton v. State, 20 Tex. App. 171; Frazier v. State, 18 Tex. App. 434; Bailey v. State, 18 Tex. App. 430; Alexander v. State, 24 Tex. App. 127, 5 S. W. 840; Branch’s Criminal Law, § 785, for collation of cases; Honea v. State, 56 Tex. Cr. R. 278, 119 S. W. 851; Bryan v. State, 54 Tex. Cr. R. 59, 111 S. W. 1035. On this ground this judgment must be reversed.

The question of venue was a serious One and was as an issue fought out on the trial. Appellants’ contention was that venue was not shown in Childress county, and the only testimony connecting appellants with the possession of the cattle was in Oklahoma. There is no direct evidence that appellants were ever in possession of the cattle in Childress county, nor even in Texas. The state proved by Weatherly that on the evening of the 28th, in Oklahoma, about a mile or more beyond the Texas line, he approached a herd of cattle of 100 or more in possession of appellants. These cattle were being driven by appellants to Hollis, seven or eight miles beyond the Texas line in Oklahoma, for the purpose of shipment. They were the property of Mrs. J. B. McKnight, and in them appellants had no interest except as hired hands. Elmore was the hired hand of Mrs. McKnight at $20 a month, and had been since the previous June. Appellant McKnight was only assisting his mother at her request in regard to her cattle and any of her interests; she being a widow. At her request he went with these cattle for the purpose of shipping them to Kansas City for sale. The shipping contract reserved the right to unload them at Wichita, Kan., for selling purposes; they were sold at Wichita, and the returns made to Mrs. McKnight. The amount of sale to her credit was about $1,946 or $1,947. The state’s contention evidently must have been that appellants had the cattle in Childress county because they were in possession of the cattle in Oklahoma within a mile or mile and a half of the Texas line. There is also evidence in the record that after crossing the Texas line some “loose cattle” got into the herd, and the facts show “loose cattle” were in the habit of getting in herds being driven as this herd was, and often gave the owners of the herds trouble in cutting- them out. This was all the direct evidence of appellants’ possession of the cattle. That they may have been in the herd driven from Mrs. McKnight’s ranch would -be but an inference or deduction from the possession in Oklahoma. How these cattle got out of Jeeter’s pasture the record is' silent. They were there on the evening of the 26th, which was Saturday. They were in the herd driven by appellants in Oklahoma on the evening of the 28th, two days later. Appellant McKnight proved a complete alibi, including Friday, Saturday, Sunday, and Monday, so far as Jeeter’s ranch was concerned, and the state offered no evidence to controvert this. No testimony was introduced to show that Elmore was ever off Mrs. McKnight’s ranch at any time; the evidence is to the effect that he was her employe or hired hand, and worked about the place. The distance from Jeeter’s place to Mrs. McKnight’s was something like seven or eight miles. There was opportunity for the cattle to have escaped from Jeeter’s pasture. There is also evidence, which seems to be uncontroverted, that appellant McKnight did not handle him mother’s stock, except occasionally at her request to assist her, and that two of his sisters managed, controlled, and handled generally the cattle of Mrs. McKnight. The contention of appellants is that, inasmuch as that was a serious question and fought out before the jury on the facts, the court’s charge was not sufficient in failing to submit this issue to the jury. We are of opinion that this contention is correct.

Germane to this matter and closely related to it were two other questions: The first is the appellants, in order to be guilty, must have been connected with the original taking in such manner as to make them principals; and the other is that they were both acting in the capacity of hired hands for Mrs. McKnight, they having no interest in the cattle themselves. Neither of these questions were submitted to the jury, but should have been. Upon another trial the jury should be appropriately instructed upon both issues. These were very prominent issues under the facts.

Over the objection of the appellants the state was permitted .to show that on the morning of the 28th of April some 12 or 15 head of cattle were seen in what was called the- eastern pasture belonging to Mrs. J. B. McKnight. They were observed by the witnesses approaching the pen where the cattle were being “cut”; that is, separated in order to make up the herd of cattle for shipping purposes. They were approaching from the southeast direction and became the subject of discussion among the hands in the pen who were cutting the cattle as above stated. Inasmuch as the cattle to be shipped had to be driven through the eastern pasture in order to reach Hollis, it was decided to turn this bunch of 12 or 15 head of “strange cattle” from the eastern pasture into the western pasture; these pastures were separated by a fence. There was anticipated trouble if the 12 or 15 head of strange cattle were left in the eastern pasture of their mingling with the herd when they started with them to Hollis, therefore, either under the direction of appellant McKnight, or with his assistance, and for the reason stated, these 12 or 15 head of cattle were turned into the western pasture. Later on these cattle were claimed by other people and carried away. The evidence in regard to these cattle was permitted to go to the jury upon the theory that appellant McKnight had stolen them. He disclaimed having any knowledge of their presence in the pasture of how they got there. He was subsequently, however, indicted for the theft of those cattle, but the case was dismissed by the district attorney. Upon another trial this evidence should not go to the jury, unless the state can in some way connect appellant with these 12 or 15 head of cattle, and further show that that connection was fraudulent. Contemporaneous theft is sometimes admissible under certain circumstances, which is unnecessary here to discuss; but, before this character of evidence is admissible, the acts must not only be contemporaneous but must be fraudulent; the mere fact that appellant saw cattle in the pasture and turned them from one pasture to another would not of itself place-him in fraudulent possession of the property. The cattle were already in his mother’s pasture at the time of the discovery, and, as far as this record is concerned, that was the first intimation he had of the presence of the cattle in his mother’s pasture. The admission, under thé circumstances, of this testimony was erroneous.

Complaint is made of the charge on possession of the three head of cattle. We think this criticism is correct. The charge informed the jury that possession alone was not sufficient to justify the conviction, but the jury could weigh it as a circumstance with other established facts in determining whether the accused was guilty of the offense or not. “If, therefore, the three head of cattle were stolen as charged, and defendants were found in possession of said cattle recently after the theft, then this possession and explanation, if any, of such possession would be proper for the consideration of the jury-in determining the guilt or innocence of the defendants as they might think the same entitled to under all the facts and circumstances in the case. This charge was on the weight of the evidence, and further instructed the jury also that they could weigh it in determining the innocence of the appellants.” This is not correct. It is the guilt and not the innocence to be determined under such circumstances. It will he observed that this is not a charge on reasonable explanation or the possession of property said to have been recently stolen. If it was so intended it did not cover that question. Exculpatory or reasonable explanation showing innocence must be shown false, otherwise an acquittal would follow. Of course, this explanation can be shown to he untrue, and it is further true that it may he viewed or weighed in the light of all the facts, and its falsity thus determined. Appellant MeKnight’s explanation was that he did not know the cattle were in the herd until pointed out to him. He did not claim the cattle, and was only driving and shipping them for his mother. This phase of it was not even submitted to the jury in .the charge; nor was a charge given with reference to unexplained possession. It is unnecessary to go further into this matter. The charge was incorrect and did not fit the facts in the case.

Another question, the court permitted to be introduced against defendant McKnight the fact that he was indicted in Hollis, Okl., for the theft of the three cattle set out in the indictment in this case. This was not admissible against him even for the purpose of impeachment. That charge was for the identical cattle set out in this indictment. It involved the same transaction, the identical matter. It would have been as correct and proper, legally speaking, to permit the state to introduce the indictment in this case for impeachment purposes as that found in Hollis, Okl. The two indictments were for the same cattle. This would not be permissible. Application for continuance is not discussed. The witness may appear at another trial.

For the errors indicated, the judgment is reversed, and the cause remanded.


author: HARPER, J. DAVIDSON, P. J.

text:
    JONES v. STATE.
    (Court of Criminal Appeals of Texas.
    May 7, 1913.)
    1. Intoxicating Liquors (§ 205) — Violation of Local Option Law — Indictment-Sufficiency.
    An indictment charging a violation of the local option law, which alleges that the local option election was held on June 6, 1903, and that on August 17, 1912, accused made a sale of liquor, sufficiently shows that the county court has jurisdiction of the offense.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 225; Dec. Dig. § 205.]
    2. Criminal Law (§ 304) — Evidence—Judicial Notice — Facts of Common Knowledge.
    The court' will take judicial notice that beer is intoxicating, where there is no issue raising the question whether it is intoxicating.
    [Ed. Note. — For other cases, see Criminal Law, Cent; Dig. §§ 295y2, 700-717; Dec. Dig. § 304.]
    3. Intoxicating Liquors (§ 239) — Violation of Local Option Law — Sale of Intoxicating Liquors — Evidence—Instructions.
    Where, on a trial for selling beer in prohibition territory, witnesses testified that the beer would not intoxicate, the court must charge that, unless the jury found that the beer was intoxicating, or if they had a reasonable doubt of the fact, they must acquit accused.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 331-347; Dec. Dig. § 239.]
    4. Criminal Law (§ 561) — Reasonable Doubt.
    One charged with crime is entitled to the benefit of a reasonable doubt on every issue of fact going to show his guilt.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1267; Dec. Dig. § 561.]
    5. Criminal Law (§ 721) — Improper Argument of State’s Counsel.
    Where accused, on a trial for selling intoxicating liquor in prohibition territory,, did not testify, the statement of the state’s attorney in his argument to the jury that the jury might as well expect accused to testify that he sold intoxicating liquor as to expect a state’s witness to so testify was an improper reference to accused’s failure to testify.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig, § 1672; Dec. Dig. § 721.]
    6. Criminal Law (§ 761) —Instructions — Invading Province of Jury.
    Where the issue was .whether beer sold by accused in prohibition territory would produce intoxication, an instruction that beer is a fermented liquor, and that all fermented liquors are intoxicating, was erroneous for failing to leave the issue to the jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1731, 1738, 1754-1764, 1771, 1853; Dec. Dig. § 761.]
    Davidson, P. J., dissenting.
    Appeal from Brazoria County Court; J. W. Munson, Judge.
    Steve Jones was convicted of violating the local option law, and he appeals.
    Reversed and. remanded.
    Geo. G. Clough, of Galveston, Masterson & Rucks, of Angleton, and L. A. Wilson, 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.

In this case appellant was prosecuted and convicted, of violating the local option law, and his punishment assessed at a fine of $25 and 60 days’ -imprisonment in the county jail.

The court did not err in overruling the .motion to quash the indictment, as the indictment did allege the date on which the local option election was held, to wit, on June 6, 1903, and that thereafter, on August 17, 1912, appellant made a sale of intoxicating liquors. The date of the election conclusively shows that the county court had jurisdiction of the offense.

There are many questions presented in the record, but, as the case must be reversed, we do not deem it necessary to discuss each of them. ■ Appellant, as stated, was charged with selling intoxicating liquor in prohibition territory. Appellant did not deny that he sold to the prosecuting witness, Claud Wellborn, the liquor; the only contention he made was that the liquor was not an intoxicating liquor. It is true that Mr. Wellborn said the liquor he bought was beer and would produce intoxication, and it might be said that evidence offered in behalf of the state would amply support a finding by a jury that the liquor sold was intoxicating, if that issue had been properly submitted to them. In Moreno v. State, 143 S. W. 156, we held that in a case where it was proven that “beer” was sold, and there was no issue in the evidence raising the question that the liquor sold was or was not an intoxicant, this court would take judicial knowledge that liquor sold in this state, denominated beer, was an intoxicating liquor, and we adhere to the rule announced in that decision. In this case, however, the defendant introduced Blair, Housman, Smith, and others who testified that they had drunk beer as sold and kept in the saloons of this state, and had also drunk the liquor sold by appellant; that there was a difference between the two; and, while the beer sold in saloons would produce intoxication, that the liquor sold by appellant labeled “Southern Select” would not produce intoxication. Thus it is seen that the issue was squarely raised in this case; and, while the court in a way submitted that issue to the jury, yet in the charge he placed the burden on the defendant to prove that it would not intoxicate. The court instructed the jury to convict appellant “unless you further find by the evidence in this case that the defendant has shown to your satisfaction that such beer so sold to Claud Wellborn, if it was sold, was a nonintoxicating beverage, when drunk in reasonable quantities.”

In this state the law is that a person charged with crime is entitled to the benefit of a reasonable doubt on every issue of fact which goes to show that he is guilty of the crime charged against him, and the really only contested issue of fact in this case was whether or not the liquor was an intoxicating liquor, and the court should have instructed the jury that unless they found that the liquor was intoxicating, or if they had a reasonable doubt of that fact, they should [ acquit him. Appellant requested a special charge presenting this issue, and the court erred in his main charge in the above respect and in failing to give special charge No. 4.

It is further made to appear that attorney Sproles, in presenting the state’s theory of the ease, said: “You just as well expect Steve Jones (appellant) to go upon the witness stand and testify that he sold intoxicating beer as to expect Spencer to do so.” Appellant did not testify on the trial of the case. Mr. Spencer was a witness in his behalf and had testified that the liquor sold would not intoxicate, and it was improper for the attorney representing the state to make this indirect reference to the failure of defendant to testify.

It may further be said that the court’s definition of intoxicating liquor was improper under the facts in this case. Any and all fermented liquors are not intoxicating liquor, and while in some cases it might not be error to so instruct the jury, yet in this case it was improper to instruct the jury, as a matter of law, that beer la a fermented liquor, and all fermented liquors are, within the meaning of the local option law, intoxicating. As stated before, the only contested issue in the case was whether or not the liquor sold by appellant would produce intoxication, and this issue should have been left to the jury for their determination.

The other matters presented, we think, present no error under the record before us, but, because of the matters above pointed out, the judgment is reversed, and the cause is remanded.

DAVIDSON, P. J.

I concur in the reversal, but I do not believe the Moreno Case correct. My dissent in that case' sufficiently expresses my views.


author: HARPER, J.

text:
    PACE v. STATE.
    (Court of Criminal Appeals of Texas.
    May 14, 1913.)
    1. Intoxicating Liquors {§ 226) — Keeping a I-Iouse — Reputation.
    In a prosecution for keeping a house where liquors are sold, it is not error to prove that the general reputation of the house was bad.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 282Í-286; Dec. Dig. § 226.]
    2. Intoxicating Liquors (§ 50) — Foreign Club — Necessity of License.
    A social club organized in Oklahoma, but which has not complied with the laws of Texas by filing its charter, etc., may not sell liquor in Texas without a license, even if it had a permit to do business in the state; there being no showing that the law of Oklahoma permitted a club to sell liquor without a license.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 51; Dec. Dig. § 50.]

      Appeal from County Court at Law, Dallas Comity; W. E. Whitehurst, Judge.
    W. T. Pace was convicted of keeping a house where liquors, were sold, and he appeals.
    Affirmed.
    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 for keeping, and being concerned in keeping, a house where spirituous, vinous, and malt liquors were sold and kept for sale in quantities of one gallon and less, without having obtained a license to retail such liquors.

There was no error in permitting the state to prove by E. J. Erwin and others that .the general reputation of the house alleged as a place where intoxicating liquors were sold was bad. Joliff v. State, 53 Tex. Cr. R. 61, 109 S. W. 176.

In the second bill of exceptions it is shown that appellant offered to introduce testimony that he had secured a charter, issued by the state of Oklahoma, authorizing the running of a social club; that under this charter a board of directors had been elected, and under this charter it had been sought to organize a club, without such charter ever having been filed with the Secretary of State of Texas, or ever having obtained a permit to do business in this state. Our Attorney General has recently compiled a very able brief on this question for the guidance of the Secretary of State and other officers, and conclusively demonstrates that a charter granted by one state has no force and effect in any other state, except by force of the laws of the state in which it is sought to transact business. We herewith copy a few excerpts therefrom:

“The ordinary rule is that the powers of corporations are strictly limited to those granted in their charters or the statutes under which they are organized. Or,' as was said by the Supreme Court of the United States, in the Dartmouth College Case, ‘a corporation being a mere creature of the law possesses only those properties which the charter confers upon it, either expressly or as incidental to its very existence.’ Revised Statutes, arts. 1164, 1167; Revised Statutes, art. 1140; Railway Co. v. Morris et al., 67 Tex. 699 [4 S. W. 156]; Ft. Worth Ry. Co. v. Rosedale Ry. Co., 68 Tex. 176 [4 S. W. 534]; Irrigation Co. v. Vivian, 74 Tex. 173 [11 S. W. 1078]; Sabine Tram Co. v. Bancroft [16 Tex. Civ. App. 170], 40 S. W. 839; Lyons-Thomas Hardware Co. v. Perry Stove Co. [86 Tex. 143], 24 S. W. 16 [22 L. R. A. 802]; Rue v. Mo. Pac. Ry. Co., 74 Tex. 479 [8 S. W. 533, 15 Am. St. Rep. 852]; Thomas v. Railway Co., 101 U. S. 81 [25 L. Ed. 950].
“In the case of Railway Co. v. Morris, supra, the Supreme Court of the state said:
“ ‘The rule that a corporation has power to do only such acts as its charter, considered in relation to the general law, authorizes it to do applies to every class of corporation.’
“ ‘The law requires articles of incorporation to be adopted, signed, and filed in the office of the Secretary of State, and these are required to give information on specified subjects, and, among others, to state the identical thing the contemplated corporation proposes to do.’
“ ‘When the articles of incorporation have been filed and recorded, as herein provided, the persons named as corporators therein shall thereupon become and be deemed a body corporate and be authorized to proceed to carry into effect the object set forth in such articles in accordance with the provisions of this title.’ (The latter quotation being from the Revised Statutes as quoted in the opinion referred to.)
“In the first place, a corporation is a mere creature of the law, and can have no legal existence beyond the limits of the sovereignty which created it. It must dwell in the place of its creation. The state of its creation cannot confer on it a corporate existence beyond its own bounds, nor add to or diminish the powers to be exercised by it in other states; that it must exist only by force of the statute or law of the state in which it is created; and that the laws of the state of its creation can by their own vigor have no extraterritorial force in another state or country, but are permitted to operate there only on the principle of comity, which will be hereafter discussed. Thompson on Corporations, §§ 7875, 7881; Chapman v. Hallwood Cash Register Co. [Tex. Civ. App.] 73 S. W. 969; Franco-Texan Land Co. v. Laigle, 59 Tex. 343; Empire Mills v. Alston Grocery Co., 15 S. W. 506; Bank of Augusta v. Earle, 13 Pet. 519, 10 L. Ed. 274.
“In Thompson on Corporations, art. 7881, that distinguished author among other things, said: ‘The following propositions are believed to be settled law: (1) That a corporation can exist only by force of the statute or other law of the state or country in which it is created. (2) That the laws of one state or country can by their own vigor have no extraterritorial force in another state or country, but are allowed to operate there only on the principle of comity. (3) That, as a corporation, it is a creature of the law or state of the country creating it; it cannot migrate into another state or country, establish its existence there, and exercise its franchises there without the consent of the Legislature of that other state or country, express or implied.’ This doctrine was conceded in a leading case in the following language, in the opinion of the court, by Chief Justice Taney: ‘It is very true that a corporation can have no legal existence out of the boundaries of the sovereignty of which it is created. It exists only in contemplation of law and by force of law; and where that law ceases to operate, and is no longer obligatory, the corporation can have no existence. It must dwell in the place Qf its creation, and canñot migrate to another sovereignty.’
“In the case of Chapman v. Hallwood, etc., above cited, the court of Civil Appeals of this state quoted with approval a portion of the foregoing excerpt, saying: ‘The corporation, being a mere creature of the local law, can have no legal existence beyond the sovereignty where created. It must dwell in the place of its creation, and cannot migrate to another sovereignty.’ Substantially the same language is used in the Eranco-Texan Land Co. Case, above cited.
“It follows from the statement of the foregoing principles that every state has the right to prescribe the terms upon which any corporation in another state or foreign country may do business within its limits, or it may exclude such corporation entirely, with the exception, of course, as to transacting interstate commerce. It also follows that the admission of a foreign corporation to transact business in another state arises purely from the rule of comity between the states; that a foreign corporation has no absolute right to transact business in another state, and may be admitted only upon such terms and conditions as the state in which it seeks to be admitted may provide by its laws; that is to say, a foreign corporation has no absolute right of recognition in another state, hut depends for such recognition and enforcement of its contracts upon their assent, which assent may be granted upon such terms and conditions as the state may think proper to impose. Taber v. I. B. & L. Association, 91 Tex. 95 [40 S. W. 954]; Metropolitan Life Ins. Co. v. Love, 101 Tex. 446 [108 S. W. 821, 1157]; Huffman v. Mortgage Co. [13 Tex. Civ. App. 169], 36 S. W. 306; Thompson on Corporations, §§ 7884-7887 ; 8 Cyc. page 1043.”

It is stated in some of the opinions cited by the Attorney General that a corporation chartered under the laws of one state, and undertaking to take up its habitation in another state and there transact business, must show that it is authorized to "do the character of business in the state where created, as well as authorized to do the business under the laws of the state where it seeks to locate, and must conform to the laws of both states in the premises. Appellant offered no proof that a club organized in Oklahoma under the charter it had secured would have the right to (to use a popular expression) “dispense liquors” to its members in Oklahoma;- and if it has no right under the law in Oklahoma, the place of its creation, it would not have such right in this state, even if it had secured a permit to do business in this state under such charter, unless authorized so to do by the terms of the permit or other law of this state. And while, under the peculiar wording of our statutes, it has been held that a bona fide club, organized and created under our laws, has the right to dispense liquors to its members under some circumstances, yet this is not the rule in Oklahoma, and the charter issued by Oklahoma would be limited by the laws of the state of its creation, in so far as its authority to do a given character of business was concerned, until, at least, a permit had been obtained for it to transact business in some other state.

It was not necessary to submit the question of whether the club was a bona fide club, as it had no legal authority to locate in Texas and transact any character of business in this state under the Oklahoma charter, without having filed its articles of incorporation with the proper officials and received a permit to do so. However, the court instructed the jury: “You are further instructed that if you find and believe from the evidence, or have a reasonable doubt thereof, that the defendant did not make any sale of liquors as alleged in the information, or that the defendant was not concerned in keeping said house, or if you find from the evidence that said house was a bona fide legal club, organized under the laws of the state of Texas, or if you have a reasonable doubt thereof, then you will acquit the defendant. But in this connection you are instructed that if you believe from the evidence, beyond a reasonable doubt, that said place was not organized as a bona fide legal club, and further find that said club was organized and run as a subterfuge for evading the liquor laws of Texas, and you further find that said defendant kept, or was concerned in keeping, said house as a house where spirituous, vinous, or malt liquors were sold or kept for sale in quantities of one gallon and less than one gallon, without first having obtained a license under the laws of Texas to retail liquor, then you will find the defendant guilty.”

This was a sufficient presentation of the issue, and there was no error in the court refusing the special instructions requested, as appellant could not assert any rights under the Oklahoma charter, creating it in this state until it had been granted a permit under the laws of this state; and it is conclusively shown that appellant, on various occasions, was in control of the house, and sold intoxicating liquors to a number of men.

The judgment is affirmed.


author: PRENDERGAST, J.

text:
    BELL v. STATE.
    (Court of Criminal Appeals of Texas.
    May 14, 1913.)
    1. Indictment and Information (§ 190)— Conviction of Lesser Grade of Offense —Attempt.
    Under Code Cr. Proc. 1911, art. 772, subd. 13, providing that every offense includes within it an attempt to commit the offense, when such attempt is made penal, and article 771, providing that where a prosecution is for an offense consisting of different degrees the jury may find accused guilty of any degree inferior to that charged in the indictment, under an indictment charging theft privately from the person, the jury could convict of the offense of attempt to commit theft from the person, if the evidence authorized such conviction.
    [Ed. Note. — Eor other cases, see Indictment and Information, Cent. Dig. §§ 596-603; Dec. Dig. § 190.]
    2. Criminal Law (§ 863) — Trial—INSTRUCTION — INSTRUCTION AFTER RETIREMENT.
    Code Cr. Proc. 1911, art. 754, provides that the jury, after retirement, may ask further ihstruction touching any matter of law, and the court shall give such instruction in writing, but shall only instruct upon the particular points on which it is asked. In a prosecution for theft from the person, the jury, after retirement, asked the judge whether they could render verdict finding accused guilty of attempt at theft, in answer to which the court charged that if the jury found from the evidence, beyond a reasonable doubt, that accused was ■ guilty of an attempt to commit theft from the person — that is, that in the county and state námed in the indictment, on or about the date named, before the presentment of the indictment, accused did attempt to unlawfully, fraudulently, and privately take from the person of the one named corporeal, personal property, without the knowledge of such owner, -and with an intent to deprive him of its value •and appropriate it to his own use — then the jury could find accused guilty of an attempt to commit theft from the person. Held, that the •charge given in answer to the jury’s question was proper.
    [Ed. Note. — Eor other cases, see Criminal Law, Gent. Dig. §§ 2065-2067; Dec. Dig. § 863.]
    3. Criminal Law (§§ 763, 764) — Trial — Instruction Not on Weight of Evidence.
    The additional charge given by the court was not on the weight of the evidence.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1731-1748, 1752, 1768, 1770; Dec. Dig. §§ 763, 764.]
    Appeal from District Court, Travis County; George Calhoun, Judge.
    Walter Bell was convicted of an attempt •to privately steal from the person, and he •appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

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

   PRENDERGAST, J.

Appellant was convicted of an attempt to privately steal from the person, and his punishment fixed at two years in the penitentiary.

The indictment was in two counts; the first properly and 'fully alleging that appellant unlawfully, fraudulently, and privately stole one pocketbook containing money from B. T. Campbell, without the knowledge and consent of said Campbell, and with the intent, etc. The second count was quashed, and the case was in no way submitted to the jury under that count. Hence it is unnecessary to further state it.

The court, in an apt, full, and correct charge, submitted the case under the charge of a completed theft privately from the person. He also, in the main charge, submitted the question of an attempt to commit said offense. In addition to the court’s charge of theft privately from the person, he gave, at appellant’s instance, his only requested charge on that subject, to the effect that if the jury found that appellant took said purse and money from the person and possession of Campbell, but at the time of said taking, and before appellant secured possession of the purse, Campbell had knowledge of said taking, or if they had a reasonable doubt of- it, to acquit him of theft from the person. It seems that the cas.e was fought out by appellant on the theory, as shown by his said special charge and the argument of his counsel before the jury, that they could convict appellant only of the offense of theft from the person, and under the indictment they could not convict him for an attempt to commit such theft.

It is shown that the jury became confused, and did not understand from the main charge of the court, under appellant’s said contention, whether they could convict him of an attempt to commit such theft. They thereupon, after being out some time, returned into open court and propounded this written question to the court: “Judge Calhoun: Are we, the jury, permitted to render verdict finding the defendant guilty of attempt at theft under this indictment on the first count?” In answer thereto the court submitted to the jury this further written charge-: “Gentlemen of the Jury: In answer to the question asked by you, the jury are instructed that under the law, if they find from the evidence in this case, beyond a reasonable doubt, that the defendant is guilty of an attempt to commit the offense of theft from the person — that is, that in the county of Travis and state of Texas, on or about the 8th day of October, 1912, and before the presentment of this indictment, the defendant, Walter Bell, did then and there attempt to unlawfully, .fraudulently, and privately take from the possession and the person of one B. T. Campbell corporeal personal property of the said B. T. Campbell, without the knowledge of the said B. T. Campbell, and with the intent to deprive the said B. T. Campbell of the value thereof, and with the intent to appropriate said corporeal personal property to the use and benefit of him, the said Walter Bell — then the jury would be authorized under the law to find the defendant guilty of an attempt to commit the offense of theft from the person, under the indictment in this case.”

Appellant’s contentions are that the evidence is insufficient to sustain the verdict; that appellant was convicted of an offense not charged in the indictment; that the verdict has the effect of an acquittal under the charge in the indictment; that the court erred in submitting the issue of attempt to commit theft from the person, because no such offense is charged in the indictment; and that the said additional charge in answer to the jury’s question should not have been submitted, because the original main charge had sufficiently set forth the law on said question, and the giving of said special instruction was upon the weight of the evidence.

None of appellant’s contentions are sound. Under the main charge of the court and the special requested charge by appellant, which was given, the evidence that Campbell knew appellant was attempting to steal his purse containing his money out of his pocket, and that he detected him thereat, before he completed the'theft, was such as not to satisfy the jury that the actual taking was complete before Campbell knew it. At least, the evidence on this point, under appellant’s contention before the jury and said charges, was such that the jury was not satisfied therefrom that the theft privately was not completed before Campbell knew it. And under appellant’s contention and argument before the jury it is shown that they did not know from the main charge of the court whether they could convict him under said indictment of an attempt to privately steal. Hence their question to the court and the court’s charge in answer thereto. The evidence, in our opinion, was clearly sufficient to show an attempted theft privately from the person, if it was not sufficient to show such completed theft.

Our statutes (articles 1350 and 1351, P. C.) make it an offense to privately steal from the person, and that, in order to constitute such offense, the “theft must be committed without the knowledge of the person from whom the property is taken.” . But the next article (1352), under the same chapter, prescribes, “If any person shall attempt to commit the offense of theft from the person, as defined in the two preceding articles, he shall be punished by confinement in the penitentiary not less than one nor more than three years,” which was an amendment added to the said other two articles by the act of 1909.

By article 772, O. O. P., it is provided: “The following offenses include different degrees.” After specifying several other offenses, subdivision 13 is: “13. Every offense includes within it an attempt to commit the offense, when such an attempt is made penal by law.” And article 771, O. O. P., is: “Where a prosecution is for an offense consisting of different degrees, the jury 'may find the defendant not guilty of the higher degree (naming it), but guilty of any degree inferior to that charged in the indictment or information.” So that clearly under this indictment, charging theft privately from the person, was included the offense of an attempt to commit theft from the person, and the court correctly submitted that question to the jury for its finding.

Our statute (article 754, C. C. P.) prescribes : “The jury, after having retired, may ask further instruction of the judge touching any matter of law. " For this purpose, the jury shall appear before the judge, in open court, in a body, and through their foreman shall state to the court, either verbally or in writing, the particular point of law upon which they desire further instruction; and the court shall give such instruction in writing, but no instruction shall be given, except upon the particular point on which it is asked.” This statute is shown to have been literally complied with in this case. Notwithstanding the court had submitted this question to the jury for a finding in an original charge, yet it is shown by the-qualification of the judge to appellant’s exception to said special charge in answer to-said question by the jury that “defendant’s counsel had argued to the jury that they could convict the defendant only of the offense of theft from the person under the first count in the indictment, which evidently had confused the jury, and therefore they asked for further instructions, and the court gave said further instructions, as above set out.”

This court, in the recent case of Harrison v. State, 153 S. W. 144, in considering said article 754, said: “The statute above quoted makes it his [the judge’s] duty to instruct the jury on the particular question they ask and while the statute says that no instruction' shall be given, except upon the particular point upon which it is asked, it does not mean, and has not been construed by thia court to mean, that because thereof the court cannot at that or any other time before the verdict correctly charge the jury on any matter thought necessary or proper by him. Neither does this statute mean that the court must give the shortest possible answer to-such a question, as he might have done in this case by the one word, ‘No,’ or the one word, ‘Yes’; but it would be proper as was done in this case, to briefly and succinctly tell the jury correctly what to do in consideration of the question propounded by the jury and answered by the court.”

In this case we think it was proper for the court, in answering the question propounded by the jury, to give such charge as was given, and that it was not upon the weight of the testimony, as claimed by appellant. There is nothing else necessary to discuss.

The judgment will be affirmed.


text:
    BURDEN v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 12, 1913.
    On the Merits, May 7, 1913.)
    1. Ceiminal Law (§ 641’) — Appointment of Counsel foe Accused — Statutes.
    White’s Ann. Code Cr. Proe. art. 547, requiring the court in capital felony cases to appoint counsel for accused, too poor to employ counsel, is mandatory.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1496-1506; Dec. Dig. § 641.]
    2. Cbiminal Law (§ 643) — Appeal—Statement of Facts — Duty of Official Stenographer.
    Under White’s Ann. Code Cr. Proc. art. 547, requiring the court in capital felony cases to appoint counsel for accused too poor to employ counsel, and Acts 32d Leg. p. 264, providing for official court stenographers and requiring them, when an appeal is perfected, to transcribe the testimony and that where the court appoints an attorney for accused the stenographer shall furnish a transcript, the court, in a capital felony case, must, where it appoints an attorney for accused because he is too poor to employ counsel, require the official stenographer when an appeal is perfected to furnish a transcript, and where the court orders the stenographer so to do it must see that the order is complied with.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. § 1456; Dec. Dig. § 643.]
    On the Merits.
    3. Criminal Law (§ 1088) — Appeal—Statement of Facts — Duty of Official Stenographer.
    Where the official stenographer failed to comply with the order of the court to furnish a transcript of his notes, and the court took no steps to compel him to do so, and the stenographer could not comply with the order of the Court of Criminal Appeals because he had lost a part of his notes, the case must be reversed and remanded.
    [Ed. Note. — For other cases, see Criminal' Law, Cent. Dig. §§ 2676, 2746-2751, 2767, 2766, 2782-2802, 2899; Dec. Dig. § 10S8.]
    Appeal from Criminal District Court, Dallas County; Barry Miller, Judge.
    J. J. Burden was convicted of crime, and he appeals.
    Reversed and remanded.
    Frank G. Harmon, of Dallas, 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-

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

   HARPER, J.

Appellant was indicted, charged with rape, and was convicted of that offense. The penalty for this offense as provided- by our Code is death, or by confinement in the penitentiary for life, or for a term of years not iess than five.

Article 547 of the Code of Criminal Procedure provides that in all capital felonies, if the accused is to poor to employ counsel, the court shall appoint one or more attorneys to defend him. This statute has been held to be mandatory. Pennington v. State, 13 Tex. App. 44; Brown v. State, 52 Tex. Cr. R. 267, 106 S. W. 368. The court, as shown by the record before us, did appoint attorneys to represent defendant, who apparently ably represented him, for, while the appellant was found guilty, his punishment was assessed at only ten years’ confinement in the penitentiary.

The attorneys appointed by the court, Messrs. Dearing, Barrett & Harmon, filed a motion for new trial, which was by the court overruled on September 14, 1912, when notice of appeal was given and entered of record. Thereafter, on the 14th day of September, defendant filed an affidavit stating that he was unable to pay for a transcript and was unable to give security therefor. On September 30, 1912, the court entered up the following order: “This day came on to be heard the request of the defendant to have the stenographer prepare a statement of facts in this cause; and it appearing to the court that the defendant had made affidavit that he is unable to pay for the same, or give security therefor, it is ordered by the court that the said request be and the same is hereby granted, and the stenographer of this court is hereby directed to prepare and make up a statement of facts in this case.” Although the term of court at which appellant was indicted did not adjourn until October 5, 1912, and the transcript in this case was not filed in this court until December 9, 1912, the stenographer appointed by the court, and who took down the evidence on this trial, had not complied with the order of the district court, and had not filed a statement of facts nor transcript of his notes with the clerk of the district court of Dallas county as required by law to do. One of the attorneys appointed by the court to represent appellant, Mr. F. G. Harmon, on January 4, 1913, filed in this court an affidavit that after the Hon. Barry Miller, judge of the criminal district court, had made an order for the official stenographer to make out a statement of facts, he frequently applied to the stenographer for the record, but that the stenographer had carelessly and negligently failed to comply with the order of the court, and appellant had thereby been deprived of a statement of facts without any fault of his attorney or himself.

On January 16, 1913, C. I. Evans, Jr., official stenographer of the criminal district court, makes an affidavit, which is filed in this court, in which he states: “That it is true that the court made an order on September 30, 1912, commanding affiant to prepare a statement of facts in said cause, and that thereafter, on three or four occasions, Mr. Geo. A. Harmon, father of defendant’s attorney, requested said stenographer to prepare the statement of facts. That the affiant had no intention of disobeying the order of the court, but through press of business in the court overlooked and neglected to comply with the same within the time allowed by law for the filing of statement of facts. That to have complied with the order would have compelled the affiant, at times, to work at nights and on Sundays, which he did not feel obliged to do without pay therefor.”

Hon. Geo. A. Harmon, of Dallas, on the 24th day of January, makes an affidavit which is also filed in this court. Among other things, he states: “That upon request of his said son Frank G. Harmon, who was temporarily residing in Austin, he called upon Chas. X. Evans, who reported the case, requesting him to make transcript in compliance with the order of the court, which the said Ohas. I. Evans, on several occasions, agreed to do. That the said Evans asked for, and secured additional time at affiant’s request; but finally and utterly failed to comply with the request of this affiant. Af-fiant further states that he was acquainted with the docket in said criminal district court No. 2, and cannot account .for the failure of the said Okas. I. Evans to prepare said transcript on account of lack of time or for any other good and valid reason. That the said Ohas. I. Evans discussed with this affiant the injustice of the law in regard to the fees accorded by the state in preparing transcript for appeal upon a pauper’s oath.”

The official court stenographer of the district court before entering upon his duties was required to take an oath to “faithfully and impartially discharge all the duties incumbent upon him as official stenographer,” and, accepting the office and taking this oath, he took it with a knowledge of what was in law required of him. If he did not expect nor care to comply with its duties as defined by law, he should not have sought for nor accepted the position, and, having done so, he will be required to comply with and perform all the duties which the statutes of this state require of him. Chapter 119 of the Acts of the Thirty-Second Legislature (page 264) provides for the appointment of official court stenographers, and places some duties on them. In section 14 of this act it is provided: “In all eases where the court is required to and does appoint an attorney to represent the defendant in a criminal action, the official shorthand reporter shall be required to furnish, the attorney for said defendant, if convicted, and where an appeal is prosecuted, with a transcript of his notes as provided in section 5 of this act, for which said service he shall be paid by the state of Texas, upon the certificate of the district judge, one-half of the rate provided for herein in civil cases.” Section 5 reads as follows: “In case an appeal is perfected from the judgment rendered in any case, the official shorthand reporter shall transcribe the testimony and other proceedings recorded by him in said case in the form of questions and answers, certifying that such transcript is true and correct, and shall file the same in the office of the clerk of the court within such reasonable time as may be fixed by written order of the court. Said transcript shall be made in duplicate; for which said transcript the official shorthand reporter shall be paid the sum of fifteen cents per folio of one hundred words for the original copy and no charge shall be made for the- duplicate copy, said transcript to be paid for by the party ordering the same on delivery, and' the amount so paid shall be taxed as costs.”

This case is one where the court was required by law to appoint an attorney to represent the defendant in the trial of the case, and the attorneys so appointed have been faithfully discharging their duties without pay or hope of reward, other than of a duty well performed. It may seem hard to the stenographer to have to perform his duty on half pay, yet the lawyer is required to perform his duty and receive no pay. Each is an officer of the court, and the law has been more generous to the stenographer than it has to the attorney, yet we find him who receives nothing for performing his duty doing so, and urging the other official to do his duty, but the latter neglects to do it. It was the duty of the district judge to have seen that this official did his duty and complied with the order by him made, yet it seems he has not done so.

Under the provisions of the law this appellant is entitled to have a statement of facts made out by the stenographer in question and answer form, and delivered to his attorney, Mr. E. G. Harmon, or filed with the clerk of the district court of Dallas county.

It seems it resolves itself into a question of whether we will compel the stenographer to perform his official duty and give to the defendant those rights which the Code accords. To do otherwise would permit any court stenographer to deprive any defendant too poor to employ counsel and pay for ■the stenographic report all right to be heard on appeal.

It is therefore ordered, adjudged, and decreed by this court that C. I. Evans, Jr., official stenographer of criminal district court No. 2, of Dallas county, Tex., be and he is hereby required to transcribe the testimony and other proceedings recorded by him in the case of J. J. Burden tried in said district court on or about September 3, 1912, it being cause No. 545, on the docket of said court, in the form of questions and answers, and that he certify that such transcript is true and correct, and file the same in the office of the clerk of said district court on or before the 1st day of March, 1913, and that on or before said date he file with the clerk of this court a receipt of the clerk of the district court showing that he has complied with this order, and, if he shall not do so, he shall be cited to appear before this court on the 5th day of March, 1913, to show cause why he should not be adjudged to be in contempt of this court in refusing to obey its orders.

It is further ordered that the attorneys of appellant be and they are hereby granted 15 days from and after the date on which the official shorthand reporter shall file with the clerk of the district court of Dallas county the papers herein required by him to be filed, in which to make out and file in this court a statement of facts in this cause; it being shown that he was prevented from filing same within the time allowed by law by matters beyond his control, and that he used all diligence it was possible for a man to use, and in this ease tbe attorney had been appointed by the court, and the law provides that he shall be furnished with the statement of the evidence.

The clerk of this court will issue all proper process herein, accompanying same with a certified copy of this judgment, directed to the sheriff or any constable of Dallas county, Tes., requiring him to serve the said C. I. Evans, Jr., with a copy thereof, and make due return to this court showing how and when he executed same.

It is further ordered by this court that this cause be set for Wednesday, March 19, 1913, for further hearing herein.

On the Merits.

At a former day of this term appellant by affidavits filed and orders entered showed that the judge trying the cause had ordered the court stenographer to make out a statement of facts as required by law in capital cases, but said stenographer had failed to do so, and we entered an order requiring that he comply with the order of the district judge. He has filed an answer, together with a transcript of a portion of the testimony only, showing that the testimony of one witness for the state, Dr. K. W. Field, and four or five witnesses for the defendant, including the testimony of defendant himself, had not been transcribed because his notebook had been lost and could not be found after diligent search.

Section 14 of chapter 119, Acts 32d Deg., provides that in all cases where the court is required to appoint an attorney to represent the defendant in a criminal action, the official stenographer shall be required to furnish the attorney so appointed by the court, if an appeal is prosecuted from a judgment of conviction, with a statement of the evidence adduced on the trial.

Article 547 of the Code of Criminal Procedure provides that in all capital felonies, if a defendant has no counsel, the court shall appoint one or more attorneys to represent him. Pennington v. State, 13 Tex. App. 44; Gutierez v. State, 47 S. W. 372.

In this case the appellant was charged with a capital felony, and the court appointed counsel to represent him, who have been diligent in their efforts to get the court to have the official stenographer comply with this law. And when he failed in the trial court, he came to this court and asked that we see that the law was complied with. We have done all that is in our power, but the stenographer says he has lost a portion of his notes, and it is impossible for him to comply. If the trial court, in cases of capital felonies, will not compel the officers of his court to comply with the law, there is nothing left for us to do but to reverse and remand the case. Our law is jealous of the rights of those of its citizens where the state is seeking his life as a penalty for crime alleged to have been committed, and they have placed safeguards in the law for his benefit. We trust no other trial judge will permit his official reporter to ignore this law, where a defendant is on trial for his life.

Because appellant and his counsel through no fault of theirs have been deprived of a statement of facts, this case is reversed and remanded. And as the court stenographer states he has done his utmost to comply with the orders of this court, and his disobedience in the first instance was to disobey the orders of the trial judge, we will only assess as against him the punishment of paying, the costs of issuing and serving the process on the motion herein, leaving it to the trial judge to administer to him such punishment as he deems advisable for disobeying his orders.

The judgment is reversed, and the cause remanded.


text:
    BARTH v. STATE.
    (Court of Criminal Appeals of Texas.
    April 16, 1913.)
    Appeal from District Court, Galveston County ; Clay S. Briggs, Judge.
    D. Barth was convicted of robbery, and appeals.
    Affirmed.
    C. E. Lane, 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 in the motion for new trial that can be considered and intelligently reviewed, in the absence of the statement of facts.

The judgment is affirmed.

1


text:
    ANDERSON v. STATE.
    (Court of Criminal Appeals of Texas.
    April 30, 1913.
    Rehearing Denied May 28, 1913.)
    1. Grand Juey (§ 19)—1Qualification of Jurors—Objections—Time.
    Under White’s Ann. Code Cr. Proc. art. 397, declaring that any person, before the grand jury has been impaneled, may challenge an individual juror, and in no other way shall objections to the qualifications and legality of a grand jury be heard, disqualification of a grand juror cannot be raised by a plea in abatement to the indictment.
    [Ed. Note.—For other cases, see Grand Jury, Cent. Dig. §§ 53-55; Dec. Dig. § 19.]
    2. Criminal Daw (§ 686) — Trial — Reception of Evidence—Disceetion of Court.
    White’s Ann. Code Cr. Proc. art. 698, provides that the court may allow the introduction of testimony at any time before argument is concluded if the judge deems it necessary to the due administration of justice. Held',\that where, in a prosecution for violating the prohibitory law, the state rested without introducing the orders of the commissioners’ court putting local option in force in the county, it was proper for the court to call the attention of the state’s attorney to the omission privately and to allow him to subsequently introduce the record of proceedings, the effect of which was to put local option in force in the county.
    [Ed. Note.—Eor other cases, see Criminal Law, Cent. Dig. §§ 1619, 1620, 1625, 1626; Dec. Dig. § 6S6.]
    3. Intoxicating Liquors (§ 239)—Wrong-ful Sale—“O coupation”—‘ ‘Business. ”
    In a prosecution for engaging in the occupation or business of selling intoxicating liquors in violation of the prohibitory law, an instruction that the terms “occupation” and “business,” as used in such law, meant trade, calling, or vocation in which one engages to procure a living or obtain wealth, was a sufficient definition of the term “occupation.”
    [Ed. Note.—For other cases, see Intoxicating Liquors, Cent. Dig. §§ 324-330; Dec. Dig. §

    For other definitions, see Words and Phrases, vol. 1, pp. 915-926; vol. 8, pp. 7593, 7594; vol. 6, pp. 4907, 4908.]
    Appeal from District Court, Navarro County; I-I. B. Daviss, Judge.
    D. J. Anderson was convicted of engaging in the business of selling intoxicating liquors, and. he appeals. Affirmed.
    W. W. Ballew and McClellan & Prince, all of Corsicana, 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 indicted at the October term, 1911, of the district court of Navarro county, charged with pursuing the business or occupation of selling intoxicating liquors in violation of the prohibition law in July, 1911.

The record discloses that he had theretofore been bound over to await the action of the grand jury. The case was continued one term of the court, and at the second term appellant filed a plea in abatement alleging that one member of the grand jury was not a qualified juror. It may be said that the evidence would show that Mr. C. W. Edgar was not a landowner, and lived with his children; but we are of the opinion that the objection came too late. See article 397 of the Code of Criminal Procedure and cases thereunder cited.

Article 698 provides that the court may allow the introduction of testimony at any time before the argument is concluded, if he deems it necessary to the due administration of justice; consequently there was no error in the court permitting the orders of the commissioners’ court to be introduced in evidence after the state had announced it closed. It may be that the judge called the attention of counsel for the state to this omission as contended by appellant, yet if he did do so the hill itself would show that it was done privately, and the jury knew nothing of the matter.

The state introduced the orders of the commissioners’ court, the certificate of the county judge, etc., showing that local option or prohibition was legally adopted in Navarro county in 1904. The defendant then introduced an order of the commissioners’ court showing that another election was held on June 15, 1907, and the order dated June 26, 1907, declaring the result of said election, in which order it was shown that in declaring the result the commissioners’ court stated that prohibition had been defeated by a majority of 12 votes. The state in rebuttal then offered in evidence the orders of the commissioners’ court made in March, 1909, in which orders it is recited that a contest of the election and of the declaration of the result thereof by the commissioners’ court was made June 26th in which it was declared prohibition had been defeated was instituted in the district court of Navarro county within the time provided by law, and the said contest resulted in a declaration by the courts of this state that prohibition had not been defeated, but had again been adopted in Navarro county at said election. The commissioners’ court then set aside its former orders declaring prohibition defeated, and in obedience to the orders of the court declared that a majority of the legal votes cast at the election held June 15, 1907, were cast in favor of -prohibition and all necessary orders and publications again made putting prohibition in force in Navarro county, Tex. In admitting these orders the court committed no error, and as the Court of Civil Appeals in the case of McCormick v. Jester, 53 Tex. Civ. App. 306, 115 S. W. 278, and Stockard v. Reid, 57 Tex. Civ. App. 126, 121 S. W. 1144, has so thoroughly discussed the questions raised herein on this issue, we do not deem it necessary to do so again. In those eases a writ of error was refused by our Supreme Court.

The court in defining occupation instructed the jury: “You are further instructed that by the terms ‘occupation’ and ‘business,’ as the same are used in this law and in this charge, is meant: The trade, calling, or vocation, in which one engages for the purpose of procuring a living or obtaining wealth. And you are instructed, in this connection, that the law requires that, before the defendant can be convicted, he must be shown by the evidence in this case to have made two or more sales, while so engaged in or pursuing said occupation or business.” This was a full and ample definition of the term “occupation,” and it was not necessary to give the special charges requested by appellant in regard thereto.

The evidence amply supports the verdict of the jury, and the court did not err in instructing the jury that prohibition was in force and effect in Navarro county.

The appellant has filed an able brief in this case; but, as all the questions discussed herein have been frequently passed on by the courts of this state, we do not deem it necessary nor proper to again review such matters at length. His motion to abate the indictment came too late. The indictment is drawn in terms frequently approved by this court. Prohibition is now and has been in force in Navarro county since the date of the election held in 1904.

Every issue raised by the evidence was fully and fairly submitted by the court, and the judgment is affirmed.


text:
    YOUNG v. STATE.
    (Court of Criminal Appeals of Texas.
    May 7, 1913.
    Rehearing Denied May 28, 1913.)
    Pebjtjky (§ 37) — Allegations—Pboof.
    The indictment for perjury charged that in a certain case the accused .testified, “I know Mr. A. when I see him. He shot once with a pistol in the .direction of Mr. O., * * * and did not drop his pistol,” etc., and further alleged that it was material whether the accused was present at such shooting, and whether A. had a pistol and shot, and that in fact accused was not immediately present at the time, and A. did not have a pistol, and that accused’s testimony was willfully false. Held), that it was not necessary to require the jury to find that the single sentence, “I know Blr. A. when I see him” was false.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 134-138; Dec. Dig. § 37.]
    Appeal from District Court, Jasper County; W. B. Powell, Judge.
    Ada Young was convicted of perjury, and appeals.
    Affirmed,
    J. J. Lee, of Jasper, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, J.

Appellant was convicted of perjury, and her punishment fixed at two years in the penitentiary.

The indictment properly charged that in a certain case in court she testified: ■ “I know Mr. Alvis when I see him. He shot once with a pistol in the direction of Mr. Oaks, my husband, and Tom Longwood and did not drop Ms pistol but carried it away with him and was four or five steps away from them at the time he shot. He shot one time.” The indictment further charges: That in said case and trial, wherein she is charged with giving said testimony, it then and there became and was a material inquiry whether or not said Ada Young was present at the time and place of the difficulty in which said Oaks was assaulted and whether or not said Alvis, a witness for the state, did then and there have a pistol upon his person, and whether or not the said Alvis did then and there fire and discharge said pistol. That in truth and in fact the said Ada Young was not immediately present at the time and place of the difficulty in which said' Oaks was assaulted, and the said Alvis did not then and there have a pistol and did hot then and there fire or discharge the same. That all of said statement so made by the said Ada Young was willfully and deliberately false, and she knew the same to be false when she made it.

The court gave a full, complete, and apt charge in the case. He charged that' the material part of the statement alleged in the indictment to be whether or not said Ada Young was present at the time and place of the difficulty in which said Oaks was assaulted, and whether or not the said Alvis, a witness, etc., did then and there have a pistol upon his person, and whether or not the said Alvis did then and there fire and discharge said pistol. The court, besides requiring the jury to believe beyond a reasonable doubt all of the facts alleged in the indictment to be true before they could convict, also charged that they had to believe beyond a reasonable doubt that said statement of Ada Young is false and untrue in this: That the said Ada Young was not ■ immediately present at the time and place of the difficulty in which the said Oaks was assaulted, and the said Alvis, the witness aforesaid, did not then and there have a pistol and ; did not then and there fire or discharge the same, before they could convict appellant.

There is but one contention in this case. It is raised and presented in several ways, and that is appellant’s claim that the said false statements were in solido, and the court did not require the jury to believe, as a necessary part of said false statements, this sentence in the testimony of said Ada Young: “I know Mr, Alvis when I see him.”

Appellant cites several cases to the effect that, where a false statement is alleged to be made in solido, it is necessary to prove all of it. The proposition he makes is correct, but in our opinion it has no application in this case. The indictment. was clearly so drawn as to present separate and distinct allegations upon material false testimony, and it distinctly traversed them, and- the court correctly submitted them. It was not necessary nor proper to submit and require the jury to believe that it was necessary to prove the falsity of the said single sentence above quoted. Roberson v. State, 150 S. W. 896;. Sisk v. State, 28 Tex. App. 436, 13 S. W. 647; Washington v. State, 23 Tex. App. 336, 5 S. W. 119; Jackson v. State, 15 Tex. App. 579; Donohoe v. State, 14 Tex. App. 638; Terry v. State, 62 Tex. Cr. R. 73, 136 S. W. 485.

The judgment is affirmed.