source: Caselaw Access Project

author: PRENDERGAST, P. J.

license: Public Domain

text:
    PRATA v. STATE.
    (No. 3379.)
    (Court of Criminal Appeals of Texas.
    Jan. 13, 1915.
    Rehearing Denied Feb. 3, 1915.)
    1. Bubglary (§ 28*) — Evidence—Admissibility.
    Though the indictment did not specifically allege that a suit of clothes and a target gun were stolen from a house by accused, who was charged with burglary, a witness may testify that such property was taken.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 67-78; Dec. Dig. § 28.*]
    2. Criminal Law (§ 517*) — Confession—Admissibility.
    A confession not made in accordance with the statute is inadmissible, even for impeachment purposes.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1146-1156; Dec. Dig. § 517.*]
    3. Criminal Law (§ 1091*) — Appeal—Bills of Exception — Sufficiency.
    Bills of exception complaining of the admission of evidence, which did not show the nature of the evidence, were too indefinite and meager to be considered, not showing any error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2S2S, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.*]
    Appeal from District Court, Taylor County; Thomas L. Blanton, Judge.
    Jose Prata was convicted of burglary, and he appeals.
    Affirmed.
    Will S. Payne, of Abilene, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of burglary, and bis punishment assessed at two years in the penitentiary. The indictment follows the statute, and is in exact accordance with the form of such indictment laid down by Judge White in his Annotated Code, § 1432, and is clearly sufficient.

The evidence shows that Leal’s house was burglarized, and a suit of clothes aftd a target gun stolen therefrom. One witness testified that appellant was in a certain restaurant in the town of Trent where the burglary occurred and asked to know where said Leal was. This witness, in going to his home, accompanied appellant near said Leal’s house and pointed it out to him. He left him, went towards Leal’s house, and said he was going to see Leal. A few days later appellant is shown to have traded, said gun to Ernest McCright, a boy who lived with his father some few miles in the country from the town where said house was burglarized. The gun was clearly identified as that stolen from the house when it was burglarized. Still a day or two later appellant was caught at Stamford, and at the time was wearing said suit of clothes which was identified and surrendered to Leal, the owner. Appellant himself admitted on the stand that he had said suit of clothes and gun in his possession a few days after the burglary, but testified he had bought them from another Mexican before the burglary. The court gave appellant’s special charge to the effect that if the jury believed appellant bought said articles to acquit him; and also gave his special charge to the effect that if said property was found in his possession, but was stolen from said house and when his possession of the property was first questioned, he made an explanation as to where he got it which was probably true, then to find him not guilty unless the state had proved the falsity of said statement beyond a reasonable doubt. No objection was made to the court’s charge at the time of the trial.

The court did not err in permitting the witness -to state that said two articles of property were stolen from said house, although the indictment did not specifically allege that the said articles had been stolen therefrom. Lynne v. State, 53 Tex. Cr. R. 3S6, 111 S. W. 151; Alinis v. State, 63 Tex. Cr. R. 371, 140 S. W. 227; Moseley v. State, 43 Tex. Cr. R. 559, 67 S. W. 414.

Appellant has these two bills of exceptions:

No. 2: “Defendant excepts to the ruling of the court in permitting the witness A. M. Mc-Cright to relate some alleged conversation had between himself and Sam Leal three days after the alleged burglary, when said Ernest McCright told his 'father that he had traded for a target from a Mexican — defendant was not present at the time the alleged conversation was had between the witness A. M. McCright and Sam Leal, nor the witness Ernest McCright — because the defendant was not present and could not be bound by any statement made by either party, and because the testimony was not and could not show the defendant’s guilt, nor connect him in any way with the alleged theft, was prejudicial, and too remote to connect this defendant. Approved and ordered filed as part of the record in this case; and was bill of exceptions No. 2. Same admitted only on issue of credibility of said witness, and jury so instructed.”
No. 3: “Defendant excepts to the ruling of the court in permitting the witness George Flourney to testify over the objections of the defendant to statements made by said defendant while under arrest. The court further erred in stating that the jury would not consider the statement so made by the defendant for any purpose only for impeachment, and that they could not consider it for any other purpose. And the court further erred in making this statement to the jury: ‘Gentlemen of the jury, if you consider this testimony, and also the last question asked the defendant, if you should consider it for any purpose, you cannot consider it as evidence of guilt against the defendant, but it is introduced only for the purpose — I mean by the state — before you, if you consider it at all, in passing upon the credibility of the witness, and for no other purpose. You cannot consider it for any purpose except in passing upon the credibility of the witness, if you consider it’ — which said statement so made by the court left the matter optionarjr with the jury whether or not they would consider same, when the court should have instructed the jury expressly at the time the question was up that said testimony was not competent testimony, as said statement, if any was made by the defendant, was while he was under arrest and without being warned, which this record fails to disclose that he was warned, which defendant says was highly prejudicial and was hurtful to his case before the jury. Defendant prays that said bill of exception No. 3 be approved and ordered filed as part of the record of this case. Approved and ordered filed as part of the record in this case ; and as bill of exceptions No. 3. Same admitted only on issue of credibility.”

If this bill bad disclosed wbat said testimony was it might have shown error, for no confession not made in accordance with the statute is admissible, even for impeachment purposes. Morales v. State, 36 Tex. Cr. R. 234, 36 S. W. 435, 846; Ferguson v. State, 31 Tex. Cr. R. 93, 19 S. W. 901; Phillips v. State, 35 Tex. Cr. R. 480, 34 S. W. 272; and other eases.

The state objects to the consideration of these bills, because they are too indefinite and meager to authorize their consideration. From neither of them can we tell that they show any error in the ruling of the court; but the best we can gather from them, as qualified by the court, they show no error.

There is nothing else in the record requiring any notice.

The judgment is affirmed.

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


author: DAVIDSON, J.

text:
    HARRIS v. STATE.
    (No. 3389.)
    (Court of Criminal Appeals of Texas.
    Jan. 20, 1915.)
    1. Criminal Law (§ 804) — Trial—Instructions — Disclosure of Charge.
    At the close of the testimony it is the court’s duty to grant accused’s application for examination of the court’s proposed charge, in order that he may urge exceptions thereto before it is read to the jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1948-1957; Dee. Dig. § 804.]
    2. Homicide (§ 270) — Defenses—Insanity-Instructions.
    Where, notwithstanding a plea of guilty, there was evidence pro and con on the issue whether defendant was insane at the time of the killing, the court erred in instructing the jury that, under the facts, they should find defendant sane.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 564; Dec. Dig. § 270.]
    3. Criminal Law.(§ 273) — Plea of Guilty -Self-Defense.
    Accused, in a prosecution for homicide, though having pleaded guilty, could not be convicted under the plea if the evidence offered to determine his punishment showed that he acted in self-defense.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 631, 632, 634; Dec. Dig. § 273.]
    4. Homicide (§ 151) — Prosecution—Plea of Guilty — Insanity—Burden of Proof.
    On the question of sanity, under a plea of guilty in a prosecution for homicide, the burden of proof is on the state to show that accused was sane at the time he committed the offense.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 276-278; Dec. Dig. § 151.]
    Appeal from District Court, Henderson County; John S. Prince, Judge.
    Belton Harris was convicted of uxoricide, and he appeals.
    Reversed and remanded.
    Ernest A. Landman, of Athens, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, J.

The jury awarded appellant the death penalty under a plea of guilty of homicide. The evidence shows appellant killed his wife. Their lives had been not of the most comfortable sort during their marital relation. Appellant had been from his infancy affected with an uncontrollable temper, giving his family, when a boy, great trouble, so much so that they called in outsiders sometimes to try to help control him. When not in these passions of anger and rage he seems to have been affectionate with his family, and, in fact, it may be stated that he was a man who otherwise got along well with those with whom he came in contact. The conclusion may be reached from the testimony that he was at times harsh, if not cruel, with his wife, and jealous of her without cause; it seemed to have preyed upon his mind. He was continually looking for tracks about their residence, and reported that he had found tracks, and accused his wife of infidelity, and it would seem from the testimony that this was all without warrant. About a month prior to the homicide his wife separated &om him and went to another home. On three or four occasions he-visited her after this separation, seeking to induce her to return and live with him, promising that he never would mistreat her again, avowing his love and affection for her and the children. She steadily refused, however, to return. They had five children, all of whom accompanied the mother in the separation. On the evening of the homicide, passing the field where his wife was at work, her children being present, he hitched his horse, went into the field where his wife was, and undertook to persuade her to return and live with him, avowing all sorts of affection, promising not to mistreat her in the future. To this she turned' the deaf ear. Then he told her he was going to apply to the court for a division of the children, stating that the court would award him some of the children. While in the field he approached the younger two children, picking them up, one under each arm, and left in the direction of his horse. His wife, who was chopping -cotton, followed-him with a hoe in her hand. In going across the field for some reason, either by the effect of the wind or stumbling, he lost his hat. He set the children down to get the hat. About this time the wife with the hoe was in close proximity, and he left and went across the fence where his horse was and secured a gun from the saddle and returned and told her that she must let him alone. Without going into detail he left, went back and got his horse and started down the road. The road was just outside and near the field. His wife followed along on the inside of the field for some distance, when he got down and took his gun and shot his wife, killing her. As to the immediate facts there is quite a lot of testimony, and as usual the testimony is variant. There was no question as to the fact that deceased had the hoe in her left hand as she was going down the fence. Some of the testimony indicates that her right hand was under her clothing on her breast. The state took issue with this latter fact. A witness, Mrs. Hunter, who dressed the body of deceased, shows that the wounds in the body were in the breast, some of the .shot also striking the left arm, several of them striking the right hand, shooting off two fingers, splitting another, and shooting off one of the knuckle joints. This testimony seems not to have been controverted. This testimony shows that the right hand was on the breast at the time of the shot; there being but one shot fired. He got on his horse after this and rode away. There is quite a lot of testimony introduced on the issue of insanity. There is some indication that the defendant first entered a plea of not guilty, but this is not shown by the judgment or any certificate of the judge, but it is shown that he entered a plea of guilty, and the judge certifies that he had a commission of doctors to examine into the sanity of appellant, and that two of these physicians made a report. The report of these physicians is here copied:

“We, your commissioners, appointed to pass upon the sanity of defendant in the above-styled case, beg leave to report that after examining 15 witnesses and the defendant, Belton Harris, we find the said defendant, Belton Harris, knows right from wrong, although we believe that the said Belton Harris is mentally defective as result of not being able to control his temper in his early days. We believe he was born mentally weak, and the lack of proper training and control developed uncontrollable temper which became an irresistible impulse to accomplish his ends regardless of consequences.
“Percy Larkin, M. D.,
“J. K. Webster, M. D.,
“Commissioners.”

The judge files a statement officially signed that he appointed these two physicians in Connection with Dr. W. A. French, and he received their report, and, in addition, heard the testimony of one of the physicians touching the sanity of the defendant, and, having talked with defendant in person, etc., it appeared to him the defendant was sane, and that he is uninfluenced by any consideration or fear in making his plea of guilty, or by any persuasion or by any delusive hope of pardon, prompting him to confess his guilt; therefore the court finds that said defendant is sane, and permitted said defendant to enter his plea of guilty, and accepted the same. There is a mass of testimony not confined to the defendant’s witnesses, to the effect that appellant was from his early boyhood afflicted with an ungovernable temper, and that when enraged nothing could be done with him. This seems not to have been minimized in his advancing years. He also developed a tendency to secure patents for inventions, among others, he stated that he had invented perpetual motion, but that he could not control the speed of his motion, and it was continually giving him trouble, and he had remodeled and tried again; that this preyed upon his mind until he became a bore to those with whom he talked in regard to this matter, and he recognized the fact that it was worrying him so that he could not sleep, and it was preying upon his mind, and said he would quit and do something else and get his mind away from it, and believed he was going crazy. But a cessation of these matters did not seem to' last for any length of time. It seems also that the question of religion disturbed his mind greatly, and many things of this sort, without going into detail, were developed on the trial. One of the doctors was placed upon the stand by the state and the other by the defendant. Their reasoning on the witness stand amplified their report. They both seemed to arrive at practically the same conclusion, that he knew right from wrong, but, on account of mental defect and his temper and matters of that sort, that he was afflicted with irresistible and uncontrollable impulse to do anything that he wanted to do and without regard to consequences.

When the case was called for trial an application was made for a continuance upon matters informal and defective, and may be not further discussed in view of the disposition of the case. However, upon another trial these witnesses may be obtained. Some of the absent testimony bore upon the question of insanity; some bore upon the temper of his wife; and some bore on the question of self-defense.

When the testimony had ceased appellant, through his attorney, -requested the court to give him the charge that he might urge exceptions to it if he saw proper. This, the court promptly declined, stating to counsel that he could reserve any exceptions and write any charges, but that he would not permit him to read his charge. Exception was taken to this. This was error. However, if there is no material error in the charge, the error might not call for a reversal. The statute guarantees to the accused the right to inspect the charge and urge exceptions to it before being read to the jury, and not only grants defendant the privilege or right to do so, but makes it almost imperative that- he do so in order to take advantage of real or supposed defects in the charge'. The appellant subsequently filed some exceptions to the charge, and also requested quite a number of charges, all of which were refused. The court submitted the case to the jury on his plea of guilty, and, among other things, instructed the jury to find the defendant guilty of murder, and also instructed the jury, in unequivocal terms, that defendant was sane. The exception filed by the defendant covered the sanity question, and special requested instructions, which were refused, also covered the question ofl sanity in such way as they should have been given by the court.

The charge, although given in a case where the plea of guilty is entered, was erroneous in instructing the jury under the facts of this case that defendant was sane. It was the principal issue urged by the defendant before the jury and by the testimony in the record. Wherever there is a contested issue before a jury in a criminal prosecution, it is the province of the jury to pass upon the weight of the testimony and the credibility of the witnesses, and this is not different under a plea of guilty from the case where the plea is not guilty. The statute requires that, when the defendant insists upon pleading guilty, certain things must be ascertained by the court before the plea of guilty will be entertained. The statute further provides that when the plea is entered testimony shall be introduced to enable the jury to fix the punishment. The court may determine perhaps in the first instance to his satisfaction that the statute has been complied with before receiving the plea, but when the facts get before the jury the jury passes upon the weight of the testimony and the credibility of the witnesses. It has been held by the decisions that this statute is mandatory, and, instead of being for the benefit of the defendant, it is more especially designed to protect the interest of the state by preventing aggravated cases of crime from being compromised by the assessment of minimum punishment. It also has been held that the provisions of the statute should be fully observed and administered. It has been further held that the trial is precisely the same under a plea of guilty as under a plea of not guilty, under the statute which requires evidence to be submitted. Crow v. State, 6 Tex. 334; Martin v. State, 36 Tex. Cr. R. 632, 36 S. W. 587, 38 S. W. 194. The fact that the court thought the defendant was sufficiently sane to admit the plea of guilty did not take away from the jury the right to pass upon his sanity under the facts submitted to them. In the Crow Case, supra, as we understand it, the law is as therein stated. Judge Lipscomb in that opinion uses this language:

“It is believed to amount to nothing more than an acknowledgment of the facts charged, and whether such facts constitute an offense at law is left open to be decided by the court.”

If the defendant pleads guilty, and the facts should develop that he is not guilty, but acted purely in self-defense, it would be the duty of the court to see that no conviction was had, although a plea of guilty was entered. Our law only authorizes a conviction where guilt is shown. If there be no legal guilt, a conviction could not be sustained, although the defendant entered a plea of guilty.

On the question of sanity under plea of guilty, our statute changes the rule, and places the burden of proof on the state. In Sanders v« State, 18 Tex. Cr. App. 372, the rule was declared, that qrdinarily the sanity of the defendant is presumed until the contrary is made to appear, but in 'prosecutions for crime, if it be proposed by the accused to plead guilty, the reverse of this presumption is the rule, and the law assumes until it is made otherwise to appear that the accused is insane or has been improperly influenced.. On a trial in a criminal case, when defendant pleads guilty, the question of his sanity is an issue required to be shown before conviction can be had, and the evidence upon that issue should be introduced in connection with the entering of the plea,of guilty. Burton v. State, 33 Tex. Cr. R. 138, 25 S. W. 782. Our law is sufficiently humane to change the burden on the sanity question where a citizen of Texas pleads guilty to an infamous crime. The theory of the law is that no citizen in his right mind would plead guilty to crime. The entering of the plea shifts the burden to the state,' and, in order to secure the conviction of the defendant, the state must meet that issue by burden of proof. The judge is not the arbiter on the facts.' The statute requires that evidence shall be introduced before the jury, and that no man shall be tried in a felony without a jury. This he cannot waive. It further requires that the facts be introduced, and, where the issue of insanity is suggested, this goes with the other facts of the case to be decided by the jury. The court cannot take it away from them, and if the jury should conclude that the party is insane, then their verdict shall be rendered accordingly. The evidence in this particular case in regard to insanity covers all phases of it, whether the insanity was at the time of the homicide or subsequently. It covers his life. The charge must submit insanity at the time of killing. The court should not have taken away this important issue from the jury and decided it for them, nor should he have instructed the jury that the defendant was sane. This was the main contested issue in the statement of facts, which covers over 150 pages. The jury may have thought or they may not have •thought that he was insane. They were further instructed that he was guilty of murder. It he was insane, he was not guilty of murder ; in fact, he was not guilty of anything criminally. The laws of Texas do not punish irresponsible insanity. The writer is further of the opinion that there may be sufficient evidence in this record to have required the court to submit the issue of self-defense, but the witnesses who are absent may be obtained upon another trial, and if the witnesses swear as appellant expects them to swear, that deceased was armed with a pistol at the time of the shooting, then the issue would become rather important. She was following him on the inside of the fence, he on the outside. She had a hoe in her left hand, and her right hand under the' clothing of her breast. The wounds on the hand demonstrate this position. If the absent witness would swear that she had a pistol at the time, then the conditions of the hand would become important from the standpoint of apparent danger. However reprehensible we may think the conduct of a man is in killing a woman, still, if the danger was such that it periled his life, it would, not deprive him of the right of self-defense. However, that question is not raised in the exceptions to the charge nor by special charges, but this is thrown out by way of suggestion, that, if the evidence is such as the application for continuance indicates, and in connection with the physical facts, .it may call for a charge on self-defense.

Believing the court was in error in the matters indicated, the judgment is reversed, and the cause remanded.


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

text:
    DAVIS v. STATE.
    (No. 3375.)
    (Court of Criminal Appeals of Texas.
    Jan. 20, 1915.)
    1. Ceiminal Law (§ 1169) — Appeal—Harmless Error.
    In a prosecution for homicide, the erroneous admission of evidence that other parties had and drank whisky in the absence of accused is not cured by withdrawing the evidence from the jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. § 1169.]
    2. I-Iomicide (§ 169) — Evidence — Admissibility.
    In a prosecution for homicide, evidence that accused sold whisky some time before the killing, not being relevant thereto, is improperly received.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 341-350; Dec. Dig. § 169.]
    3. Criminal Law (§ 784) — Homicide (§ 30) — Instructions — Circumstantial Evidence.
    Where all were together pursuant to a common unlawful design, all were guilty, regardless of who fired the fatal shot; and hence an instruction on circumstantial evidence is not warranted.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1883-1888, 1922, 1960; Dec. Dig. § 784; Homicide, Cent. Dig. §§ 48-51; Dec. Dig. § 30.]
    Prendergast, P. J., dissenting.
    Appeal from District Court, Newton County; A. E. Davis, Judge.
    Harvey Davis was convicted of murder, and he appeals.
    Reversed and remanded.
    Forse & Hamilton, of Newton, for appellant. C. B. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, J.

Appellant was convicted of murder, and prosecutes this appeal.

The theory of the state was: That appellant and others, on the night of the homicide, were acting together in unlawful purposes. That, among other things, they went to the house of a'negro, named Kellum, and that Dock Hughes went in the house and shot the wife of Kellum to death. Kellum killed Dock Hughes. There is no evidence that any of the other parties were in the house, though the state’s testimony shows they were about the house or near by.

The court’s charge with reference to acting together in the conspiracy and kindred subjects is attacked for various reasons. The writer does not care to review those questions. The charge is in accordance with the opinion in the recent case of Serrato v. State, 171 S. W. 1133. The writer does not agree with that opinion, and believed the charge sustained in that case did not and does not correctly state the law. But the charge in this ease seems to be in harmony with the opinion in that case.

The charge is further attacked because it does not submit the law of circumstantial evidence. The writer believes the exception to the charge in this respect to be well taken. This matter is raised in various ways, but suffice it to say that this phase of the law was not given in charge to the jury, either in the court’s charge or requested instructions offered. At times it is a little difficult to determine whether a charge on circumstantial evidence is requisite. It has been held in several cases that, where the facts are in such close juxtaposition to the main fact as in cases of homicide, it is not necessary to give this phase of the law in charge. In this case, however, the court relied upon circumstances to connect the defendant with the homicide. There is no evidence that he was engaged in the killing; in fact, the evidence excludes that idea. His criminality or connection with the killing must be, if at all, gathered from circumstances, in the absence of positive evidence. From this viewpoint the writer believes a charge on circumstantial evidence was necessary. There is another viewpoint, however, in the light of the facts of this case, which seems to call for a charge on this phase of the law. Circumstantial evidence, as a rule, does not apply to criminal intent, but it applies usually to the act or criminal’ connection with the act charged to be a violation of the law. The mere presence of a party at the scene of the homicide does not make him a criminal. He may have known that a crime was committed, yet if he did not participate in it directly or indirectly, or encourage the party doing the killing, his mere presence would not constitute him a principal in the transaction nor connect him criminally with the killing. So, from either viewpoint, the charge on circumstantial evidence was called for by the facts. Appellant having presented the matter fully and clearly so as to bring himself within the late statute, the charge should have been given.

It is also claimed by bill of exceptions the court was in error in permitting evidence to go before the jury with reference to other parties having whisky and drinking it in the absence of appellant, when it was in no way connected with this homicide. The court, after admitting this testimony, withdrew it from the jury. It is always dangerous for a court to admit erroneous testimony of a damaging nature, as it evidently was in this case, and then seek to withdraw it from the jury and remove the effect from their minds. This testimony was clearly not admissible, and it occurs to us, under the facts, was damaging and of such a nature that the withdrawal of it did not cure the error.

The other phase of the whisky selling that was permitted to go to the jury arose at a meeting of some negroes, where the witness testified she bought whisky from the appellant. This was some time prior to the homicide and at a different place, and was not connected with the homicide in any way. It doubtless was a violation of the local option law in Newton county for him to sell this whisky, but that offense had nothing to do with this homicide, and was in no way connected with it, and was evidently of a damaging character. This was error.

For the reasons above stated, the judgment is reversed, and the cause remanded.

HARPER, J.

(concurring). In agreeing to the reversal of the ease I do not agree that a charge on circumstantial evidence was called for. The record shows that Dock Hughes and appellant agreed to go to the negro quarters and “get them a negro.” They were together when Dock Hughes fired the shots in the schoolhouse; they were together when appellant whipped Elsie McCain; they were together when they went to two other negro houses, and defendant -whipped another negro; they were together when they went to the house of the negro Kellum. Hughes and appellant carried on a conversation about how to get Kellum out of the house. As the positive testimony shows appellant present on all these occasions, we do not think a charge on circumstantial evidence was called for. It is not clear who fired the fatal shot that killed Grace Kellum, but it is manifest that appellant, Dock Hughes, or one of those acting with him did do so; and regardless of who fired the shot, as the evidence shows they went to Kellum’s house to do an illegal act, all understanding and agreeing to the unlawful act, each and every one present and participating would be equally guilty with the one who fired the shot.

PRENDERGAST, P. J.

(dissenting). I agree with Judge HARPER. But I also believe the withdrawal by the court of the evidence as the reason for whipping Elsie McCain cured that error, and that the admission of the other evidence, for which the case is partly reversed, is not such error as should cause reversal.


author: HARPER, J.

text:
    STEWART v. STATE.
    (No. 3367.)
    (Court of Criminal Appeals of Texas.
    Jan. 6, 1915.
    On Motion for Rehearing, Feb. 3, 1915.)
    1. Ceiminal Daw (§ 304) — Evidence—Judicial Notice.
    The court will take judicial knowledge that beer is intoxicating.
    [Ed. Note.- — For other cases, see Criminal Law, Cent. Dig. §§ 700-717, 295iy2; Dec. Dig. § 304.]
    2. Criminal Law (§ 939*) — New Trial — Newly Discovered Evidence.
    Where, on a trial for selling liquor in local option territory, a state’s witness testified to buying beer from accused in the presence of two men whose names he did not know, accused could not obtain a new trial on the ground of newly discovered testimony of two persons claiming to have been present at the time testified to by the state’s witness; the two persons being present in the courtroom during the trial, and one of them aiding accused’s counsel in selecting the jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2318-2323; Dec. Dig. § 939.]
    3. Criminal Law (§ 939) — New Trial — Newly Discovered Evidence.
    A new trial for newly discovered evidence cannot be granted, unless accused was ignorant of the existence of the evidence at the time of the trial, and that it was not on account of want of diligence on his part that he did not discover its existence prior to the trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2318-2323; Dec. Dig. § 939.]
    4. Criminal Law (§ 942) — New Trial — Newly Discovered Evidence — Impeaching Evidence.
    A new trial will not be granted on the ground of a newly discovered witness who will impeach or discredit a state’s witness.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2316, 2331, 2332; Dec. Dig. § 942.]
    Appeal from Smith County Court; Jesse F. Odom, Judge.
    Frankie Stewart was convicted of violating the local option law, and appeals.
    Affirmed.
    Simpson, Lasseter & Gentry, of Tyler, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was convicted of violating the local option law, and her punishment assessed at imprisonment in the county jail for 20 days and a fine of $25.

After proving that prohibition was in force in Smith county, the state introduced J. S. Foulkes, who testified:

“I know the defendant, Frankie Stewart, and know where she lives. I bought beer from her at her house on the night of May 16, 1914. H. L. Tackett and myself were engaged at that time by N. W. Brooks, county attorney, to procure evidence of violations of the local option law in Tyler. On this occasion, we_ went to Frankie Stewart’s place with two railroad men. I do not know their names and did not ask their names. It was about 9:30 or 10 o’clock that night when we went to the house of the defendant, and we stayed there until about 11 o’clock. While there, we had beer for all four of us twice, and I paid for it each time. Paid 50 cents a bottle for it, and had four bottles the first time and five bottles the other time. It was served to us in glasses, and I could not buy any to take away from the house. I went back to the toilet and there was a cask partly full of beer in there, and I took a bottle of it and brought it away and gave it to the county attorney the next morning. The bottle exhibited here now is the one I brought away from there that night. It is labeled, ‘Southern Select,’ and shows to be put up by the Houston Ice & Brewing Company. This transaction occurred in Smith county, Tex., on May 16, 1914.

The defendant testified denying that she sold any beer to state’s witness, and denied that she had or kept beer for sale at her house.

Appellant contends that, as no witness testified that beer is an intoxicating liquor, she was entitled to an acquittal. We decided this question adversely to appellant in Moreno v. State, 64 Tex. Cr. R. 660, 143 S. W. 156, Ann. Cas. 1914C, 863, and while we have read the brief filed by appellant’s able counsel, and the authorities there cited, our opinion of the question is not changed, and we still hold that “beer” as sold and handled in this state is judicially known to be an intoxicating liquor, as is whisky, alcohol, etc.

The only other assignment discussed in appellant’s brief, and the only one we deem it necessary to mention, is the one relating to what is termed “newly discovered evidence.” In her motion she alleges that Walter Story and A. B. Campbell were the men with Foulkes on the night of May 16th, when he was at her house, and they would swpar she sold Foulkes no beer; that no beer was drunk at her house that night, and the only thing that they did drink was whisky out of a bottle that Foulkes carried there with him. She attaches the affidavits of both Story and Campbell, and they both state they would so testify. The state contested the motion, and by affidavit showed that both Story and Campbell were in attendance on court and were present during the trial of appellant; that Campbell aided appellant’s counsel in selecting the jury. If Campbell and Story were at her house in company with Foulkes on the night in question, appellant knew that fact as well before and during the trial as she did after the trial was over; they were both there in attendance on court, and she should then have placed them on the witness stand if she desired their testimony. It can in no sense be claimed to be newly discovered testimony, because the affidavits make it apparent that appellant knew, as well as did Campbell and Story, they were the two “railroad men” who accompanied Foulkes. But the record makes it clear that neither of them are railroad men. When Foulkes testified that two men were with him, whose names he could not call, if, as a fact, Story and Campbell were the men, she knew that fact then, and could have called both of them, as they were sitting there in the courtroom. She, in her motion for a new trial, says that the “men drank whisky while at her house and she reprimanded them,” and if so, of course, she knew who they were. If they had not been in attendance on court, she should have asked for process for the two men, and the. case postponed until they could be obtained. But this was not even necessary in this instance, for the record discloses both were present in the courtroom; one of them aiding her counsel in selecting the jury. She could not proceed with the trial without calling the witnesses, they both being in the courtroom, and then ask for a new trial on account of their testimony.

In Judge White’s Procedure the rule is correctly stated to be:

“Where the motion shows upon its face that it is improbable that the defendant could have been ignorant of the existence of the alleged newly discovered evidence, the new trial should he denied. It must appear that he was ignorant that such evidence did in fact exist when he was tried, that a knowledge that it does exist has been obtained by him since the trial, and that it was not on account of a want of diligence on his part that he did not discover its existence prior to his trial. It must be clearly apparent that the evidence came to his knowledge since the trial. Price v. State, 36 Tex. Or. R. 403, 37 S. W. 743; Blount v. State, 34 Tex. Or. R. 640, 31 S. W. 652; Burton v. State, 33 Tex. Or. R. 138, 25 S. W. 782; Shell v. State, 32 Tex. Or. R. 512, 24 S. W. 646; Fisher v. State, 30 Tex. App. 502, IS S. W. 90; Makinson v. State, 16 Tex. App. 133; Duval v. State, 8 Tex. App. 370; Hutchinson v. State, 6 Tex. App. 468; Darnell v. State, 6 Tex. App. 482; Evans v. -State, 6 Tex. App. 513; Gross v. State, 4 Tex. App. 249; Williams v. State, 4 Tex. App. 255; Walker v. State, 3 Tex. App. 70.”

She also alleges that she did not know, and could not ascertain, the place of residence of the witness Foulkes until the day of trial; that on the trial he testified he had formerly lived at Waco, Corsicana, and other places; that since the trial she has learned that the reputation of Foulkes, when he lived at Waco, for truth and veracity, was bad, and she attaches the affidavit of several citizens of Waco who so state. Does the fact that she, since the trial, has learned she can secure witnesses who will testify that the state’s witness’ reputation for truth and veracity is bad, furnish ground upon which to grant a new trial? If so, this is a case in which the new trial should have been granted, for the state relied solely upon the testimony of Foulkes to secure a conviction. She denied making the sale as positively as he testified that she did sell to him. There is nothing to show that her reputation for truth and veracity is bad, and we must presume that it is good. However, it seems to have been the unvarying rule in this court to uphold the ruling of the trial court in refusing to grant a new trial for this character of testimony- — that the reputation of the prosecuting witness for truth and veracity is bad. In White’s Ann. Code Cr. Proc. the rule is stated to be: Newly discovered evidence will not authorize a new trial if the purpose of such evidence be merely to impeach or discredit a witness who has testified for the state; citing a number of authorities in subdivision 8 of section 1149. The testimony must be of that degree of force and cogency that if the witness had been Known, and legally summoned, his absence would have been ground for a continuance. We have received advance sheets of a few chapters of Mr. Branch’s Annotated Penal Code, and in that it is shown that a continuance will not be granted for testimony of purely an impeaching or discrediting nature; citing Rodgers v. State, 36 Tex. Cr. R. 563, 38 S. W. 184; Garrett v. State, 37 Tex. Cr. R. 198, 38 S. W. 1017; Shaw v. State, 39 Tex. Cr. R. 173, 45 S. W. 597; Martin v. State, 41 Tex. Cr. R. 242, 53 S. W. 849; Scott v. State, 43 Tex. Cr. R. 597, 68 S. W. 177; Powell v. State, 49 Tex. Cr. R. 474, 93 S. W. 544; Early v. State, 51 Tex. Cr. R. 385, 103 S. W. 868, 123 Am. St. Rep. 889; Gee v. State, 57 Tex. Cr. R. 151, 122 S. W. 23; Bolton v. State, 43 'S. W. 1010; Patton v. State, 58 Tex. Cr. R. 231, 125 S. W. 24; Trinkle v. State, 59 Tex. Cr. R. 259, 127 S. W. 1060: Bussey v. State, 59 Tex. Cr. R. 260, 127 S. W. 1035; Rushing v. State, 62 Tex. Cr. R. 309, 137 S. W. 372; Stephens v. State, 63 Tex. Cr. R. 382, 139 S. W. 1144; Melton v. State, 63 Tex. Cr. R. 573, 140 S. W. 781; Eifer v. State, 64 Tex. Cr. R. 203, 141 S. W. 992; Wade v. State, 144 S. W. 247; Wragg v. State, 145 S. W. 343; Robinson v. State, 145 S. W. 345; Loggins v. State, 149 S. W. 170; Fletcher v. State, 153 S. W. 1135; Capíes v. State, 155 S. W. 267; Giles v. State, 157 S. W. 943.

The judgment is affirmed.

On Motion for Rehearing.

Appellant in her motion for rehearing earnestly insists that we erred in not granting her a new trial on account of the alleged newly discovered testimony of Campbell and Story, and says, among other things:

''With all due deference to the justice who wrote the opinion, we state that nowhere in the motion for new trial, nor in appellant’s testimony, did she state that ‘the men drank whisky while at her house and she reprimanded them.’ ”

Appellant’s motion for a new trial is sworn to by her on the 28th day of September, 1914, before L. N. Cross, county clerk, and without copying the entire fourth ground in the motion for a new trial, we take the following excerpts therefrom:

“Witness will further testify that there was no beer served or sold in the parlor at Frankie Stewart’s to Foulkes or any one else; that, from the time they arrived there until they left, they remained in the parlor, except a short time they were out in the hall when the witness Foulkes gave to each of the parties above named some whisky; that Frankie Stewart (appellant) reprimanded them for drinking.”

Again, she states she expects to prove on another trial:

“That the witness Foulkes had some whisky and gave part of it to the witness and to Walter Story, drank some himself, and gave some to another gentleman with him in the hall, and that Frankie Stewart (appellant) told them she did not want them drinking at her place.”

These are literal excerpts from the fourth ground of her motion for new trial and which she swears is true, and appellant’s counsel must not have read it recently, or he would not make an allegation of the above character in the motion for rehearing. The alleged newly discovered evidence must appear to be in fact newly discovered, and such as could not by a reasonable exercise of diligence have been discovered in time for the trial. Butts v. State, 35 Tex. Cr. R. 364, 33 S. W. 866, and cases cited in original opinion.

It is hard for one to conceive that Story and Campbell knew that appellant “reprimanded them for drinking whisky in her house,” and appellant did not know that she gave the reprimand.

The motion for rehearing is overruled.


text:
    BURRUS v. STATE.
    (No. 3385.)
    (Court of Criminal Appeals of Texas.
    Jan. 20, 1915.)
    1. Indictment and Information (§ 110) — Language of Statute — Theft from the Person.
    An indictment for theft from the person, which conforms to the statute and the form for indictment under the statute in White’s Ann. Pen. Code 1895, § 1531, is sufficient.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 289-294; Dec. Dig. § 110.]
    2. Larceny (§ 30) — Theft from the Person —Indictment—Sufficiency.
    Under Code Cr. Proc. 1911, art. 468, providing that in indictments for theft of money it is sufficient to describe the property in general terms as money, an indictment for theft from the person, which describes the money stolen as “twenty dollars of lawful money of the United States,” sufficiently describes the money.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 64-75, 99; Dec. Dig. § 30.]
    3. Criminal Law (§ 1086) — Record—Review —Refusal of Instruction.
    The record must show that instructions requested by accused and refused by the court were presented to the court before it read its charge, or the ruling will not be reviewed on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2769, 2770, 2772, 2794; Dee. Dig. § 1086.]
    4. Criminal Law (§§ 1064, 1091) — Assignments of Error — Review.
    Assignments of error complaining of the refusal of requested charges will not be considered, where neither the motion for new trial nor tlie bill of exceptions point out why it was error to refuse the charges.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2676-2684, 2803, 2815, 2816, 2S18, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. §§ 1064, 1091.]
    5. Criminal Law (§ 829) — Instructions— Refusal of Instructions Covered by the Charge Given.
    It is not error to refuse requested instructions embraced in the court’s charge.
    [Ed. Note. — Eor other eases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.]
    6. Criminal Law (§ 770) — Evidence—Instructions.
    The court should submit affirmatively accused’s special defense established by his evidence.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 1806; Dec. Dig. § 770.]
    7. Larceny (§ 44) — Evidence—Admissibility. ■
    Where, on a trial for theft from the person, accused showed that he did not take prosecutor’s money with the intention of appropriating it, but merely pulled it out of prosecutor’s shirt front to show to him that he had not lost it, evidence that accused and prosecutor were Odd Eellows was admissible.
    [Ed. Note. — Eor other cases, see Larceny, Cent. Dig. § 134; Dec. Dig. § 44.]
    Prendergast, P. J., dissenting in part.
    Appeal from District Court, Wichita County; Edgar Scurry, Judge.
    R. N. Burrus was convicted of crime, and he appeals.
    Reversed and remanded.
    Nicholson & Davenport, of Wichita Ealls, 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

   PRENDERGAST, P. J.

Appellant was convicted of the theft of money from the person of T. P. Berry, and his punishment assessed at three years in the penitentiary.

The indictment is in accordance with the statute and the form for such indictment under the statute laid down by Judge White in his Annotated P. C., section 1531, and is sufficient and valid. The money stolen is described as “twenty dollars of lawful money of the United States.” This was a sufficient description of the stolen money as prescribed by our statutes, and so held by many decisions of this court. Article 468, C. C. P.; Green v. State, 28 Tex. App. 493, 13 S. W. 784; Taylor v. State, 29 Tex. App. 466, 16 S. W. 302; Wofford v. State, 29 Tex. App. 536, 16 S. W. 535; also Sims v. State, 64 Tex. Or. R. 442, 142 S. W. 572 and Eerrell v. State, 152 S. W. 901; and the cases cited and reviewed in those decisions. Also, see the case of George McAdams v. State, from Milam County, 172 S. W. 792, this day decided.

Some of the facts were established without controversy. The testimony of the witnesses on some of the other issues is conflicting. We will give substantially the material testimony.

Appellant and Berry were strangers in Wichita Palls, where this offense is alleged to have been committed. They met for the first time in the evening of May 18, 1914, in a saloon. Berry was very drunk. The barkeeper, upon Berry’s request, handed him $20, two $10 bills. Appellant saw this. Berry testified that he first met appellant in the saloon in the evening of May 18, 1914; that he was then drunk; that he did not remember how long he and appellant were together that evening before they were arrested; that he had $20 in two $10 bills; that he had it in a note or pocket book, which he exhibited and identified on the trial. He did not remember how much other money he had that evening. “I had never seen Burrus until that day. I don’t know why I took up with him, unless it was that I was pretty drunk. Burrus had been with me, following me around, that evening before he took my money from me.” On cross-examination, he testified:

“I had never seen Burrus before that day. I was too drunk to take care of myself. I remember getting the money at a saloon where I had left it and putting it in a notebook. *_ * * I don’t know whether or not Burrus tried to get my money, as I said I was so drunk that I don’t remember.”

Re-examined by the state, he testified that the firát time he saw Burrus was on the date specified, and said:

“I did not know him then, and I don’t know him now, except that I saw him at the examining trial and seen him when he was out on bond the other day. I don’t know anything about him at all. I did not tell Burrus that he could get my money. I did not give Burrus consent to get my money. I have never seen Burrus before the day I was robbed.”

J. W. Rawls, a policeman at the time in Wichita Ealls, testified that he saw appellant on the date the alleged theft took place.

“When I saw him he was with this man Berry down on Ohio street in the city of Wichita Ealls, Tqx. Berry was pretty drunk, and I went to him and told him that he would have to get off the streets or I would have to throw him in jail, and Burrus, who was with him, told me that he would take care of him, and so I let him go and watched them, and they finally went into the Chile King restaurant. Some one told me that I had better watch Burrus, as he was fixing to take Berry’s money from him. I had on my uniform and knew that I could not watch him, as he would know who I was, and I saw Bob Lyons, another policeman, who was dressed in plain clothes, so I told him to watch them, and I went on about my business. It was only a short time until they came out of the restaurant and went into the Princess bar, which is about 15 feet from the restaurant.”

On cross-examination, lie said:

“I don’t think that the defendant was drinking. If he was, I could not tell it on him at all.”

Said policeman, Bob Lyons, testified that he was near the front of said restaurant on said occasion when Rawls told him to watch appellant and Berry; that he was dressed in plain clothes and did not have on any uniform; that appellant and Berry went into the restaurant, sat dowh on two stools, and he went in and sat near them; that he ordered a piece of pie and a glass of milk, and was listening to their conversation; that Burrus was trying to borrow $10 from Berry, but Berry told him he did not have any money to loan; that Berry was pretty drunk; that if Burrus was drinking he could not tell it on him at all; that they got up and went out of the restaurant, and he followed them into the Princess bar; that finally they walked kinder towards the back of the saloon, and he followed them; they were talking all the time; he could not understand what they were saying. He said:

“I got in behind the screen lattice which was in the back of the saloon, and I could see them, but they could not see me. I was watching them all the time, and finally Burrus reached in the hip pocket of Berry’s pants and got the long notebook out .and started to put it in his (Burrus’) pocket; but, just as he started to put it in his pocket, I grabbed him and took the pocketbook away from him. Pie said for me to be damn sure that there was $20 in there. I told him that I would take care of that and would also take care of him. There was $20 in there. I arrested both Burrus and Berry and took them to the city hall.” That he turned over said money to the chief of police.

On cross-examination be said be was sitting close to Burrus and Berry in tbe restaurant and could bear wbat they were talking about; that Burrus was trying to borrow $10 from Berry, and Berry would not let him have it; that be never beard Berry offer to let Burrus have any money.

J. B. Nail, tbe chief of police in Wichita Palls, testified that on May 18, J914, Bob Lyons turned over two $10 bills to him; that be put them in tbe bank, and they bad been there ever since. He produced tbe two bills and identified them. He said they were United States money and of tbe value of $20.

Appellant, for himself, testified that tbe policeman Bob Lyons arrested him in the King restaurant, and not in the Princess saloon ; that be was' a stranger in Wichita Palls and met Berry tbe evening of May 18, 1914; that be went into a saloon, where be first met Berry, bunting for a man whom be had met tbe day before to get him to clean a suit of clothes for him; that be did not find him in there and started out; that the bar was lined up with a bunch, and, just as he got to the head of the bar, Berry asked him to have a drink; he at first declined, but, upon Berry insisting, he did take a toddy with him; while he was drinking the most of the bunch left; that Berry told the barkeeper to let him have his money that he had left there; the barkeeper put two $10 bills out on the bar, and Berry started to put it in his long note or pocket book; the barkeeper told him that he would lose his money; that he (appellant) had a small pocketbook, and he took it out and gave it to Berry to put the money in and then put that in his (Berry’s) large notebook; that Berry asked him to stay with him and look after him, as he was pretty drunk, and he told him all right; that he tried to get him to go up in his room and go to bed, but Berry declined and wanted to take another drink; that they left the saloon, walked out on the streets, and sat down and talked awhile, when- the policeman Rawls saw them and came to them and told them as Rawls swore he did. He claimed that when they went to a saloon to take another drink Berry wanted to find a toilet and did go back to the toilet, but left his money with him while he was in the toilet; that he got the money back from him when he came back from the toilet; that they then went out of that saloon into the restaurant; that Berry wanted something to eat, and he did not, but upon Berry insisting he did order some fish, and they sat there and ate it. lie then claims that, after they got through eating, they went kinder back in the restaurant, when Berry began again about having lost his money; that he told him that he had not lost his money, but it was in the front of his shirt bosom, and he began to look for and couldn’t find it. “I reached my hand in there, and pulled the money nearly out of his shirt, and said, ‘Here is your money.’ Just about this time, some one reached over my shoulder and grabbed my hand that I had the pocketbook in, and before I got it out of the shirt front of the man Berry. I asked him what he meant, and told him to be damn sure that all of that money was in the pocketbook, and he said that was all right, he would take care of the pocketbook, and me also.” He at first swore that this occurred in the back end of the restaurant, and not in the saloon. He afterwards changed his testimony, and said that it was in the back end of the saloon and not in the restaurant. He swore that he did not take the pocketbook and money out of Berry’s hip pocket, nor did he start to do so. The state’s witness Lyon swore positively that he did take it out of Berry’s hip pocket, and did not attempt to take it out of Berry’s shirt in front. This was one of the controverted issues in the testimony. Appellant denied trying to borrow any money from Berry while they were eating in the restaurant, but said that Berry told him, if he wanted any money, he would let him have it, as he had plenty. He claimed that he was with Berry on that occasion three or four hours, and had ample opportunity to have 'taken his money if he had wanted to, and that he did not intend to take and keep the money, but simply, as Berry claimed that he had lost it, to show it to him. and show him that he had not lost it.

The record shows that appellant made but one objection to the court’s charge, and that is, he claimed that the charge failed to affirmatively tell the jury that they must believe beyond a reasonable doubt that he intended to appropriate the money to his own use and benefit before they could convict him. If the court, in his charge as submitted to appellant’s attorney, at first omitted this, it was clearly supplied in the charge in the record, in response to his objection.

There are in the record five special charges, shown to have been prepared by appellant’s attorneys. No reason whatever is given in either of them why they should have been given, either in the charges themselves, or in the motion for new trial, or in his bill complaining of the court’s refusal to give them. The record shows that he took one bill of exception thereabout to the effect that on the trial, after the evidence had been concluded, he presented “to the court his special requested instructions Nos. 1, 2, 3, 4, and 5, and requested the court to give them in charge to the jury, which said special instructions are as follows, to wit.” Then he simply copied each of said claimed five special charges. His bill concludes with this:

“Which request on the part of defendant the court refused and did not give said special instructions or any one of same in charge to the jury, to which action and ruling of the court the defendant then and there in open court excepted, and here now tenders this his bill of exception, and asks that the same be approved, signed, filed, and constitute a part of the record in this case, which is accordingly done” — which bill is signed by the judge.

The trial seems to have been concluded on August 7, 1914. This bill was not presented, allowed, and filed until August 29th.

From the record it is very questionable whether it is sufficiently shown', if at all, that these charges were presented to and requested of the court before the court read his charge to the jury. In other words, that they were presented as required by the recent act of the Legislature on the subject. Ross v. State, 170 S. W. 305. If they were presented within that time, as the bill is in the record, it is not,so presented as to show any reversible error in the court’s refusal to give the charges. Ryan v. State, 64 Tex. Cr. R. 637, 142 S. W. 878; Berg v. State, 64 Tex. Cr. R. 618, 142 S. W. 884. However, conceding that said special charges were presented within the proper time and ‘ the questions raised in such a way as to require consideration thereof, we have examined each of them, and in our opinion they were fully and completely embraced in the court’s charge, so that in no event was it necessary to give any or either of them, and the court did not err in refusing to give either of them. However, as the case is to be reversed by my Associates, we think the court in another trial should submit affirmatively appellant’s special defense, to the effect that, if he did not take Berry’s money with the intention of appropriating it, but merely pulled it out of his shirt front to show to him he had not lost it, then to acquit him.

By the only other bill of exception, appellant complains that the court erred in refusing to let appellant swear that he and Berry were members of the Odd Fellows Lodge. In the opinion of this writer, said evidence was inadmissible. But even if it was admissible, the exclusion of it, under the circumstances of this case, should not require a reversal. But my Brethren are of opinion the evidence was admissible, and on their opinion the ease will be reversed and remanded, to which I dissent.

The verdict of the jury assessed three years in the penitentiary. The sentence of the court does not comply with our indeterminate sentence law. We call attention to this, so that, if necessary on another trial, the proper sentence, as required by the indeterminate sentence law, should be entered.

Reversed and remanded.


author: CARL, J.

text:
    ST. LOUIS, B. & M. RY. CO. v. JENKINS.
    (No. 5397.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 20, 1915.
    Rehearing Denied Feb. 3, 1915.)
    1. Master and Servant (§ 297) — Injuries to Servant — Special Findings — Inconsistency.
    In an action for the death of a railway engineer killed when his engine left the track, the jury answered a special issue as to whether the track was uneven or not properly ballasted, or whether there were sunken joints in it, in the negative. It also found specially that the track was not in a reasonably safe condition for the passage of locomotives and trains; that this, with- the nature of the engine, was the proximate cause of the wreck ; that the track was not reasonably safe for high speed, or for a work train at a low speed; that the locomotive in question could be run on the track at 15 miles an hour with safety; that deceased had orders not to run it over 12 miles an hour; that defendant was not exercising ordinary care to have the track in safe condition; that it could not have known of the unsafe condition by the exercise of ordinary care; and that deceased was operating the train at from 8 to 15 miles an hour. Held that, even construing the answer to the first mentioned issue, its meaning being doubtful, as a finding that the road was not properly ballasted, the findings were still in direct conflict and a judgment thereon could not be sustained.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1195-1198; Dec. Dig. § 297.]
    2. Trial (§ 350) — Special Interrogatories —Questions to be Submitted.
    The special issue law was intended to simplify trials by the submission to the jury of those matters touching the liability dr nonlia-bility and the pertinent defenses, and was not intended to require a finding on every fact tending to establish or disprove these main issues.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 828-833; Dec. Dig. § 350.]
    3. Evidence (§§ 121, 317; § 275% New, vol. 18 Key-No. Series) — Hearsay—Exceptions to Rule.
    Where, in an action for death, it was shown that deceased, after the death of his mother, who was named as the beneficiary in an insurance policy, made his younger brother the beneficiary for the purpose of showing that he would not have contributed to the support of Ms father for whose benefit the action was brought, evidence that the mother, on her deathbed, but some time before her death, requested deceased to make this change, was not admissible as res gestse, as a dying declaration, or under any other exception to the rule excluding hearsay evidence.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 303, 307-338, 1117, 1119, 1174-1192; Dec. Dig. §§ 121, 317.)
    4. Evidence (§ 275%, New, vol. 18 Key-No. Series) — Hearsay—Dying Declarations.
    'A .statement that would not be admissible if declarant were living is not admissible as a dying declaration, and the declarant must have knowledge of the transaction.
    5. Death (§ 104) — Actions—Instructions— Measure oe Damages.
    Where, in an action for death, the court submitted a special issue as to the sum which, if paid at the time of the trial, would be equal to the pecuniary benefit that plaintiff had a reasonable expectation of receiving, it was not necessary to tell the jury to find what total sum deceased would have contributed to plaintiff had he lived, and then discount this by deducting interest to show the present worth.
    [Ed. Note. — For other cases, see Death, Cent. Dig. §§ 142-148; Dec. Dig. § 104.]
    Appeal from District Court, Nueces County; W. B. Hopkins, Judge.
    Action by Jesse F. Jenkins against the St. Louis, Brownsville & Mexico Railway Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Claude Pollard and E. H. Crenshaw, Jr., both of Kingsville, and H. R. Sutherland and Robt. W. Stayton, both of Corpus Christi, for appellant. Jno. C. Scott and W. L. Dawson, both of Corpus Christi, for appellee.

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

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

   CARL, J.

This cause was before this court once before, and is reported in 163 S. W. 621 et seq., to which reference is here made for a full statement of the nature of the case. Such other matters as may be necessary will be stated in the course of this opinion.

The case was submitted to the jury on 35 special issues, and, out of that maze of issues, the jury emerged with several answers that are charged to be inconsistent to such an extent that a judgment cannot properly be based thereon. Some of those issues, and the answers thereto, are as follows:

“(3) Say whether or not the railroad track at and near the place where the wreck occurred was uneven, or was not properly ballasted, or were there sunken joints in it at and near that place? Answer: No.”
“(16) On the morning of September 22, 1906, state whether or not the track and roadbed of defendant at the place of the wreck was in a reasonably safe condition for the passage of locomotives, cars, and trains. Answer: No.”
“(19) If you have answered special issue No. 16 in the negative, then state whether or not the defendant, by the exercise of ordinary care, would have known that said track at and near the place of the wreck was not in a reasonably safe condition for the passage of locomotives, cars, and trains over the same. Answer: No.”
“(5) If there were sunken joints in the track, or it was unneven or not properly ballasted at and near the place where the wreck occurred, say whether or not the condition of the track, either alone or in connection with the fact of the engine being a switch engine, without front or pony trucks, was the proximate cause of the wreck and death of the engineer? Answer: Yes.”
“(7) Say whether or not the fact that the engine he was operating at the time of his death was a yard or switch engine, without front or pony truck, either alone or in connection with uneven track and sunken joints in the same and the track not being properly ballasted, if such was the condition of the track and roadbed at and near the place where the wreck occurred, the proximate cause of the wreck and death of the engineer? Answer: Yes.”

By their answer to special issue No. 3, it will be seen the jury said that the track was not uneven at the place where the wreck occurred, was properly ballasted, and there were no sunken joints. In answer to special issue No. 16, the jury said that the track at that place was not in a reasonably safe condition for the passage of locomotives, cars, and trains, which is equivalent to sayiDg that the track was not even or properly ballasted, and that it had sunken joints in it, and that this condition was due to the negligence of the railway; and this, together with the nature of the engine, was the proximate cause of the wreck. In further answer, they say, virtually, that the track was not reasonably safe for high speed or for the work train at a slow speed; and then, in answer to issue No. 13, that this locomotive at the time of the wreck could be operated along this track at 15 miles per hour with safety. They also find that deceased had orders not to operate at above 12 miles per hour, that the defendant was not exercising ordinary care to have the track in safe condition, and that the defendant could not have known of the unsafe condition of the track by the exercise of ordinary care. Further, that deceased was operating the train at from 8 to 15 miles per hour at the time of the wreck.

It will be noted that the finding, in answer to No. 19, that the defendant would not, by the exercise of ordinary care, have known that said track was, at or near the place of the wreck, in bad condition, is in direct conflict with the answer to No. 15, to the effect that the defendant failed to exercise ordinary care to have its track in a reasonably safe condition. Even if we should eliminate the clause in No. 3, “or was not properly ballasted,” or construe the answer to say that the road was not properly ballasted (which meaning is doubtful), the answer there given and the answer to No. 16 are conflicting, because failure to ballast would not necessarily mean that the road was unsafe. It would then mean, by said answer to No. 3, that the track was not uneven and did not have sunken joints. The jury said, however, in answer to No. 16, that the track was not in a safe condition; and then that the railway, by the exercise of ordinary care, would not have known these facts. Answering No. 15, the jury said that the defendant was failing to exercise ordinary care to have its roadbed and track in a reasonably safe condition on the morning of September 22, 1906, the date of the accident, and this answer is in direct conflict with the answer to No. 19 above referred to.

These answers are inconsistent and contradictory, and this court, although desirous of giving effect to verdicts where the plain meaning may, upon the whole, be ascertained, will never sustain a judgment rendered upon any such crazy-guilt, haphazard guesswork as the jury’s findings in this case appear to be. It is inconceivable that any ordinary damage suit for personal injuries should require the submission of 35 special issues. The special issue law was intended to simplify trials by the court submitting to the jury for determination those matters touching the liability or nonliability in the cause and pertinent defenses, and was not intended to have the jury make a finding on every fact which tends to establish or disprove those main issues. Instead of presenting a simplified case to this jury, made up of a few real issues, they are led into a maze of conflicting findings, in struggling to extricate themselves from the avalanche of questions, to such an extent that no man can tell what they did intend to find.

Assignments Nos. 1, 2, and 3 are sustained.

Assignment of error No. 4, in the form in which it is presented, is overruled.

The next matter raised is:

“The court erred in allowing plaintiff to testify, in substance, that his wife before her death told Harvey Jenkins that she wanted his policy changed so that Fred could get a chance at schooling; over the objection that the question, calling for such testimony, called for hearsay testimony, whereas none of the exceptions to the hearsay rule obtained.”

The defendant had introduced evidence for the purpose of showing that the deceased had broken with his father, appellee herein, and would not thereafter have contributed to his support. To do this, it was proven that he had changed the beneficiary in his insurance policy from his mother, after her death, to his younger brother, Fred. It was already in evidence that, after the death of his mother, deceased did not make his insurance payable to his father. The railroad company relied upon this as one circumstance to show that deceased did not intend to contribute longer to his father’s support. The statement is claimed to have been made on her deathbed. The question asked and answer made, over objection, were:

“Q. Now, Mr. Jenkins, what did your wife say to Harvey Jenkins with regard to changing this insurance policy? A. She told him that Fred, he was a young boy and not—and wasn’t a boy, you know, wasn’t—you would not call him a very healthy boy at that time; he was a boy, a slender looking boy, and his mother thought always just like this: She thought there was nothing in the world like Freddie, and she wanted the policy changed. Now, understand, she wanted the policy changed so that Fred would get a chance for schooling if Harvey (deceased) was killed.”

The statements of Mrs. Jenkins alluded to occurred about 15 days before she died, and subsequent to her death the insurance policy was changed, making Fred the beneficiary. Even if this were put upon the basis of a dying declaration of Mrs. Jenkins, it is not Harvey Jenkins’ statement, and would not be a part of the res gestae of the changing of the policy. This did not take place until some time after Mrs. Jenkins died, and such request on the part of the mother was not a declaration on the part of the son. The fact that the beneficiary in the insurance policy was changed is established by the uncon-tradicted evidence. Even if we put it on the basis of a will, the validity of the act is not questioned, and it is not necessary or proper to introduce evidence as to the mental condition of the testator. Jones on Evidence, 609. If Mrs. Jenkins had been alive, her testimony as to her request to change the policy would not be a part of the res gestee, because the policy was not changed until some time after her death, which was about 15 days after the conversation took place. Suppose her request was made under all the solemnity of a dying declaration, so far as she was concerned, certainly it was not such as to Harvey Jenkins; and, since the change in the policy is not impeached, that fact speaks for itself.

The admission of dying declarations and matters res gestae are admitted out of necessity in certain cases, but no such necessity exists here. It is not on a footing with a case where a man is shot, or hurt in a wreck, and spontaneously, and generally in agony, cries out, telling how it happened. A statement that would not be admissible if the witness were living is no more admissible as a dying declaration, and the declar-ant must have knowledge of the transaction. Jones on Evidence, 333. This evidence was not admissible as a dying declaration, because Harvey Jenkins did not make it, and, even if his apparent assent to his mother’s request be construed as a declaration on his part, he was not then in extremis so as to make it admissible as his declaration. Neither is it admissible as res gestae to throw light on the validity of the transfer of the policy, because that is admitted and needs no aid from such testimony. Its sole function was to counterbalance the fact that the policy was not transferred to the father, by weighing against that fact a mother’s love for a younger son, which is always beautiful to behold, but nevertheless totally inadmissible in this case.

The fifth assignment is sustained. G., C. & S. F. Ry. Co. v. Finley, 11 Tex. Civ. App. 71, 32 S. W. 51.

The sixth and seventh assignments are overruled, because the witness had sufficiently shown that he did not have the letter and did not know where it was, to enable him to testify as to its contents.

The charge on the measure of damages, complained of in the eighth and ninth assignments,' is a reasonably plain presentation of the rule, we think, so that the jury understood what was meant. It is not necessary to tell a jury to find what total sum deceased would have contributed to appellee had he lived, and then to discount that sum by deducting the interest at the legal rate, so as to show the present worth of the total sum so found. The issue submitted was:

“Say what sum of money, if paid now, would be equal to the pecuniary benefit, if any, that plaintiff had a reasonable expectation of receiving from his deceased son, had he lived.”

These assignments are overruled.

There is no evidence of prejudice or passion on the part of the jury, and the tenth assignment is overruled.

On account of the 'errors mentioned, the judgment is reversed, and the cause is remanded for trial.