author: DAVIDSON, J.

text:
    COLLINS v. STATE.
    (No. 3218.)
    (Court of Criminal Appeals of Texas.
    Dec. 9, 1914.)
    1. Indictment and Information (§ 114)— Sufficiency — Previous Convictions — “Same Offense.”
    Under Pen. Code 1911, art. 1618, authorizing additional punishment where accused has been previously convicted of the same offense, an information, alleging- that accused had been convicted of the “same offense,” setting out two instances thereof did not properly charge the character of offense; the words “same offense” not meaning the identical offense, but one of like character.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 301-307; Dec. Dig. § 114.

    For other definitions, see Words and Phrases, First and Second Series, Same Offense.]
    2. Indictment and Information (§ 169)— Evidence — Issues and Proof.
    Where the information did not properly allege previous convictions so as to warrant the additional punishment authorized by Pen. Code 1911, art. 1618, the admission of the records of prior convictions was error.
    [Ed. Note. — For other cases, see Indict&ent and Inf., Cent. Dig. §§ 320, 535; Dec. Dig, § 169.]
    3. Criminal Law (§ 1169) — Harmless Error —Issues and Proof.
    Such error was not cured by withdrawing the incompetent evidence from the jury, and,. in view of a punishment of $200 and 10 days’ imprisonment and the statutory penalty of not less than $50 nor more than $500, and imprisonment not to exceed six months, was prejudicial.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. § 1169.]
    4. Criminal Law (§ 814) — Instructions— Application to Case.
    In a prosecution for unlawfully practicing medicine, where the information alleged that defendant charged $2 of the current money of the United States of, America for his services, an instruction, authorizing a conviction if he charged any money of any" sort for medical treatment, was not within the issues, which should have been confined to finding the money charged to be the current money of the United States.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839,1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. § 814.]
    5. Physicians and Surgeons (§6) — Unlawful Practice — Prosecution—Evidence.
    In a prosecution for unlawfully practicing medicine, evidence of the auditor of a newspaper that defendant had a credit on his books of $247, in the absence of any showing that it had been placed there to pay for advertisements therein, or any other connection, was inadmissible.
    [Ed. Note. — For other cases, see Physicians and Surgeons, Cent. Dig. §§ 6-11; Dec. Dig. § 6.]
    6. Physicians and Surgeons (§ 6) — Unlawful Practice — Prosecution — Evidence —Advertisement.
    In a prosecution for illegally practicing medicine, the admission of an advertisement which on its face was that of another person, and copies of the newspaper containing advertisement of an osteopathic infirmary and hospital, followed by the name of defendant as its physician and surgeon without a showing that defendant authorized the publication and was connected with the infirmary, did not make Mm responsible, and was inadmissible.
    [Ed. Note. — For other cases, see Physicians and Surgeons, Cent. Dig. §§ 6-11; Dee. Dig. § 6.]
    7. Criminal Law (§ 1083) — Recognizance-Effect on Jurisdiction of Lower Court.
    Defendant’s recognizance, after conviction, did not oust the trial court of jurisdiction to determine his motion for a new trial, as it requires a notice of appeal to attach the jurisdiction of the Court of Criminal Appeals; and, even if defendant gave notice of an appeal, the trial court had jurisdiction over the judgment until the end of the term.

    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 2732; Dec. Dig. § 1083.]
    Appeal from El Paso County Court; J. M. Dea ver, Special Judge.
    Ira Collins was convicted of unlawfully practicing medicine, and he appeals.
    Reversed, and cause remanded.
    See, also, 161 S. W. 115. :
    Denman, Franklin & McGown, of San Antonio, and Coldwell & Sweeney, of El Paso, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

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

   DAVIDSON, J.

Appellant was convicted of unlawfully practicing medicine, under the second count in the information, which charges that he unlawfully practiced medicine on a human being without having first registered his license as required by law, showing his authority to practice medicine as set forth in the statute. It further charges that on or about the 7th day of May, 1913, appellant was convicted in El Paso county in the same court of the same offense herein charged against him, upon pleadings then legally pending in said court, of which the said court had jurisdiction, and that prior to the commission of the aforesaid offenses by the said Ira Collins, to wit, on the 8th day of January, 1914, in the county of El Paso, he was duly and legally convicted in said last-named court of the same offense herein-before charged against him, upon an information then legally pending in said court and of which the said court had jurisdiction. Many exceptions also were taken to the charge of the court, all of which seem to have been decided against him by the previous decisions of this court, and it is deemed unnecessary to discuss them. See Singh v. State, 146 S. W. 892, Byrd v. State, 162 S. W. 360, and White v. State, 157 S. W. 152.

It is contended that the information is insufficient, alleging previous convictions so as to obtain the enhanced punishment authorized by the Penal Code, where the party has been previously convicted of similar offenses. This information charges that appellant has been before convicted of the same offense, setting out two instances where he has been previously convicted of the same offense. This does not properly charge this character of case as was decided by this court in Kinney v. State, 45 Tex. Cr. R. 509, 78 S. W. 226, 79 S. W. 570, and Muckenfuss v. State, 55 Tex. Cr. R. 216, 117 S. W. 853.

This question was again raised when the state offered in evidence the records of prior convictions. The court permitted these judgments to go to the jury. However, the court instructed the jury in the charge not to consider the prior convictions. Without going into detail with reference to this question as variously presented, the appellant’s contentions are correct; the indictment was not sufficient in this respect.

The court was in error in permitting the evidence to go before the jury to be considered by them. This error was not cured by withdrawing the illegal testimony in the charge. The court cannot permit illegal testimony material in nature to go before the jury and remain before them, and then undertake to cure that by withdrawing the evidence from their consideration. That this evidence was hurtful is found in the amount of the punishment assessed, which was a fine of $200 and 10 days’ imprisonment in the county jail. The punishment prescribed by the statute is not less than $50, nor more than $500, and by imprisonment in the county jail for any term not to exceed six months, and each day of such violation shall constitute a separate offense.

Many exceptions were reserved to the charge at the proper time. We call attention to one of these, in which the jury was authorized to convict the defendant if, among other things, he charged any money of any sort for medical treatment, because the information had alleged that defendant charged current money of the United States of America for his services. Upon another trial the court should confine the findings of the jury to the allegations in the information. The information alleges appellant charged $2 current money of the United States of America for his services. The evidence does not show what kind of money was paid. The witness said “$2.” If it was not current money of the United States, of course that allegation would not be met, and the court should have confined the jury to finding the money to be current money of the United States.

Another bill of exceptions recites that the court permitted the introduction of the evidence of Mr. Veazey, the auditor of the El Paso Herald; that the defendant had a credit on the books of the Herald Publishing Company for $247. As this is presented we think the objections were well taken. This matter should be connected up in some way to make it admissible. The fact that defendant had $247 to his credit in the Herald Publishing Company did not prove, or tend to prove, so far as the matter is shown, any issue in this case. Possibly or probably it might be connected up so as to make it admissible. If the state was trying to show that he was publishing to the world through a newspaper that he was practicing medicine and this money was placed there to pay for such advertisements in that paper, it might be admissible, but it must be connected in some way so as to make it admissible.

Another bill in the same connection shows the court admitted, over appellant’s objections, an advertisement that on its face showed it was that of another person and not the- defendant, and copies of the “El' Paso Daily Herald,” containing advertisements of “tide A. T. Still Osteopathic Infirmary, Ira W. Collins, Physician and Surgeon in Chief,” and advertising said infirmary as a hospital, for the cure of diseased persons, to which action appellant urged objections. If Ira W. Collins authorized the publication, it would be admissible against him, but until that was shown in some way the mere fact that the A. T. Still Osteopathic Infirmary published his name with it would not make Collins responsible. If he was connected with.that infirmary, and it was so shown, this evidence might be admissible to show that he was engaged in that particular character of practice of medicine, but unless it is connected in some way, the testimony would not be admissible.

There is another question which is nbticed. There is a motion made to dismiss the appeal. It is thus presented. When the verdict of the jury was returned, and before notice of appeal was given, appellant entered into recognizance in open court Subsequently he moved for a new trial. The court declined to hear that motion because appellant had entered into recognizance thereby ousting the county court of jurisdiction. This is not correct. The recognizance does not oust the trial court of jurisdiction; it takes notice of appeal to do that. Without such notice the jurisdiction of this court does not attach. Under the statute and the authorities notice of appeal is requisite to attach the jurisdiction of this court; a recognizance would amount to nothing in ousting the lower court of jurisdiction and attaching jurisdiction to this court without notice of appeal. In the case of Bundick v. State, 59 Tex. Cr. R. 9, 127 S. W. 543, which was a felony, it is said:

“Where, after conviction of murder, a motion for new trial was overruled, notice of appeal was given, and an order allowed to file a statement of facts within 30 days, but during the term of the court at which the conviction was had the defendant filed a supplemental motion for new trial, alleging that one of the jurors who tried him was an ex-convict, which motion was overruled, and to which the defendant again excepted and gave notice of appeal, and the transcript in the ease had not yet been made out and filed in the Court of Criminal Appeals.” It was “held that the trial court having jurisdiction over its proceedings until the expiration of the term, had jurisdiction of the motion and the case.”

The trial court was in error in refusing to hear the motion for new trial, which was filed in time, and the mere fact of entering into recognizance did not oust that court of its jurisdiction, and under the authority of the Bundick Case, supra, even if he had given notice of appeal, inasmuch as the trial court has jurisdiction over its judgments until the end of the term, that should have been set aside and an additional motion for new trial heard, after which another notice of appeal would have attached the jurisdiction of this court. ■ ■ But in no event does the recognizance attach the jurisdiction of this court. The court should have heard the motion for new trial and passed upon it.

The judgment is reversed, and the cause remanded.


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    GUERRERO v. STATE.
    (No. 3348.)
    (Court of Criminal Appeals of Texas.
    Dec. 9, 1914.)
    1. Witnesses (§ 300) — Testimony AsainSt Self.
    A defendant in a criminal prosecution has the right not to testify therein. "
    [Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. §§ 1042, 1042%; Dec. Dig. § 300.]
    2. Homicide (§ 166) — Evidence—Motive.
    In a prosecution for murder, a conversation, wherein the father of the murdered girl told defendant that she had told him that defendant had said to her that if she would not run away with him he would kill her, and that if she told any of their “secrets” he would kill her, and wherein defendant asked if there was any proof as to that matter, and, when told that there was, said they would go to law about it, was admissible as tending to show his motive in killing deceased.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. §§ 320-331; Dec. Dig. § 166.]
    3. Criminal Law (§ 406) — Evidence—Admissions.
    Defendant’s statement, shortly after the shooting, made to one who asked why he had killed the girl, that “in Mexico they are killing lots of them — why can’t I kill one?” was an admission.that he killed the girl, and admissible to prove that fact.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 785, 894-917, 920-927; Dec. Dig. § 406.]
    4. Criminal Law (§ 1137) — Appeaj>-Paett Entitled to Allege Error.
    In a prosecution for homicide, where a witness testified to an admission by defendant, defendant, who, on cross-examination, elicited the witness’ question to him, “For God’s sake what have you done?” could not complain of its admission, if harmful.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 3007-3010; Dee. Dig. § 1137.]
    5. Criminal Law (§ 361) — Trial—Conduct of Defendant.
    In a prosecution for murder, where the plea was insanity and where defendant, while the jury was in the box, would throw his head about, shake his hands, and shuffle his feet, evidence for the state that such conduct did not occur when defendant was not in view of the jury was admissible.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 802, 803; Dec. Dig. § 361.]
    6. Criminal Law (§ 1166%) — Trial—Custody of Accused.
    In a prosecution for murder, where the sheriff on one occasion did not take the handcuffs off the accused until the jury were taking their seats, but it did not appear that the jury saw him take the handcuffs off accused, such custody or restraint of accused was not reversible error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3114-3123; Dec. Dig. § 1166%.]

      7. Cbiminal Raw (§ 311) — Presumptions— Sanity.
    Every man is presumed to be sane until the contrary appears to the satisfaction of the jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 742-744; Dec. Dig. § 311.}
    8. Criminal Law (§ 331*) — Burden of Proof —Insanity.
    The burden of proof is on defendant setting up insanity as a defense to show that he was insane at the time of the commission of the offense.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 742-744; Dec. Dig. § 331.}
    9. Homicide (§ 309) — Instructions—Manslaughter.
    Where the only evidence as to why defendant killed deceased was, that he wanted her to run off with him and that she would not, that there were “secrets” between them which he did not wish her to disclose to her parents, and that he had threatened to kill, her if she told them, and that she told her parents of the threats, and he feared she would disclose the “secrets,” and her father questioned him about the matter, and some three hours afterwards defendant placed a pistol near her temple and fired, killing her instantly, there was no issue of manslaughter in the case; and hence no error in refusing to give a specially requested charge thereon.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 649, 650, 652-655; Dec. Dig. § 309.]
    10. Criminal Law (§ 784) — Instructions— Circumstantial Evidence.
    Where defendant admitted to a witness that he had killed the deceased, the court did not err in refusing a charge on circumstantial evidence, as it is only when the evidence is wholly circumstantial that such a charge is required.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1883-1888, 1922, 1960; Dec. Dig. § 784.]
    11. Criminal Law (§ 721) — Remarks of Prosecutor — Defendant’s Failure to Testify.
    In a prosecution for murder a district attorney’s remarks as to what defendant said when the father of the murdered girl asked him why he had said to her that if she would not run away with him he would kill her and if she told what defendant said he would kill her. that defendant did not deny it, as he would if it had not been true, and that the jury knew he would have denied it, but instead he said they would go to law, were not objectionable as a reference to defendant’s failure to testify.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1672; Dec. Dig. § 721.]
    12. Criminal Law (§ 1092) — Appeal—Bill of Exceptions — Tuns for Filing.
    A bill of exceptions, to authorize the Court of Criminal Appeals to consider it, should be filed during term time.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. É 2803, 2829, 2834-2861, 2919; Dec. Dig. § 1092.]
    13. Criminal Law (§ 854) — Trial—Conduct of Jury — “Separation.”
    Where the jury room was upstairs over the district court room, and the stairway leading to it was seven or eight feet from the door of the courtroom, and when the jury came down the stairs and started to take their seats it was discovered that one was not present, though he was seen coming down the stairs, and his tardiness was only from half a minute to a minute and a half, and it was impossible for him to have met any one, there was not a “separation” of the jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2039-2047; Dec. Dig. § 854.

    For other definitions, see Words and Phrases, First and Second Series, Separation of Jury.]
    Appeal from District Court, Hays County; Frank S. Roberts, Judge.
    Benigno Guerrero was convicted of murder, and he appeals.
    Affirmed.
    Louis T. Dugger, of San Marcos, 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 eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, J.

Appellant was prosecuted and convicted of murder, and his punishment assessed at death, from which judgment he prosecutes this appeal.

No one saw the actual shooting, now living, other than appellant, and he, as he had a right not to do, did not testify in the case. Appellant had married Catarino Morales,- and is charged with having killed a sister of his wife, Isabel Morales, a 15 year old girl.

As tending to show a motive for the killing, the father of the two girls, Nicholas Morales, testified that on the day of the homicide he had a conversation with the defendant; that in this conversation he (the witness) told appellant that the girl Isabel had told him that he (defendant) had said to her, “If she (Isabel) would not run away with him he would kill her, and that if she gave away any of the secrets they had between them he would kill her;” when appellant asked if he had any proof in regard to the matter, and when told that the father had appellant replied, “Well, we will go to law about it.” The girl was killed that evening in the field, while she was at work. This conversation was objected to, but the court did not err in admitting it as it clearly tended to show the motive of appellant in killing deceased.

Appellant also objected to a conversation had between appellant and Gregorio Valdez shortly after the shooting. Valdez says he heard of the shooting, and went to appellant’s home and asked why he had killed the girl, when appellant replied, “In Mexico they are killing lots of them — why can’t I kill one?” This was an admission that he killed the girl, and was admissible to prove that fact. It is not contended that he was under arrest at that time, in fact it is shown by all the testimony that he was not. However, when the testimony was admitted, appellant’s counsel cross-examined the witness in regard to this statement, asked the following questions, and elicited the following answers thereto:

“Q. State exactly what words you used in that question? A. When I got to the house he was in bed, and I says: ‘For God’s sake, Guerrero, what have you done?’ Q. Now, was this answer about killing so many Mexicans in Mexico and about Mm having a right to kill one, was that the answer to that question, ‘For God’s sake what have you done?’ A. That’s what he said. That’s all he said to him.”

The state on its direct examination had. not elicited the question propounded by appellant to the witness, but merely the statement of defendant, and if the question, “For God’s sake, what have you done,” was hurtful, it was elicited by appellant on cross-examination in answer to a direct question.

The defendant’s plea was insanity, and he introduced several witnesses to show that the relatives of his mother were insane, that on one occasion he himself attempted to commit suicide, and other facts and circumstances were introduced by defendant on this issue. The state introduced a number of witnesses who testified that appellant was sane. Among other things the record discloses that, while the trial was being conducted, and the jury was in the box, appellant “would throw his head about, shake his hands, and shuffle his feet.” The state introduced witnesses who testified that when the court was at recess and the jury was not present appellant would cease to “throw his head about, shake his hands, and shuffle his feet.” These antics in the presence of the jury were performed evidently to assist his plea of insanity, and there was no error in permitting the state to show that they did not take place when he was not in view of the jury.

It is shown by one bill that on one occasion the sheriff did not take the handcuffs off the prisoner until the jury was being brought in and were taking their seats. There is nothing in the bill to show that the jury saw the sheriff take the handcuffs ofl: of appellant. The court says it is usual and customary in bringing prisoners from the jail to the courtroom to handcuff them, but when in the courtroom they are taken ofl:. Only in this one instance did the jury arrive in the courtroom before the handcuffs had been removed, and in this instance it is not disclosed that the jury saw that the prisoner was handcuffed. Prisoners should never be kept manacled while being tried, unless absolutely necessary, but the state of facts shown by this bill does not present error.

The only objection urged to the court’s charge when presented to counsel for inspection was, “that those paragraphs presenting the issue of insanity were erroneous in that said charge is upon the weight of the evidence, in that it specifies that such testimony must be introduced before a jury can believe that the defendant was insane at the time of the alleged commission of the offense.” We suppose this objection is leveled at that portion of the charge which informs the jury, “that every man is presumed to be sane until the contrary appears to the satisfaction of the jury.” That is the law in this state, and the court did not err in so instructing the jury. The burden of proof is on the-defendant to show that he was insane at the time of the commission of the offense. In addition to this the court gave the special charge requested by appellant on this issue.

The court did not err in refusing to give the special charge presenting the issue of manslaughter. The only evidence in this-case which would indicate the reason appellant killed deceased was that he wanted her to run off with him and she would not do it; that there were “secrets” between the two> he did not wish her to disclose to her parents, and had threatened to kill her if she' did tell them; and that she told her parents about the threats, and he feared she would also disclose the “secrets.” The girl’s father had questioned him about this matter some three hours before the homicide, and the facts would show he went'to her while she was at work in the field, placed the muzzle of a 45-ealiber pistol near her temple, and bored a hole through her head, she dying instantly. There was no issue of manslaughter in the case.

As appellant admitted to Gregorio Valdez he had killed the girl, the court did not err in refusing the charge on circumstantial evidence. It is only when the evidence is wholly circumstantial that such a charge is required.

The other special charges, in so far as they are the law of the case, are fully covered by the court’s charge.

In another bill the remarks of the district attorney are complained of. The bill shows that the district attorney made the following remarks:

“ ‘What did you say when the father of the murdered girl said: “Benigno, why did you say to Isabel that if she did not run away with you you would kill her, and if she told what you said you would kill her?” ’ The district attorney then turned and faced defendant, leveled his finger at him and said: ‘D'id you deny it? No. You know if it had not been true that you would have denied it then.’ And turning to the jury the district attorney continued: ‘And you, gentlemen of the jury, know he would have denied it to his father-in-law, but, instead, defendant said, 'If you can prove it, go to the1 law.’ ”

These remarks, as the bill plainly shows, referred to the conversation had between appellant and the father of the girl at the noon hour, and could not be construed into referring to the failure of the defendant to testify.

The only other matter presented by the record that we deem it necessary to discuss is the one that contends that the jury was permitted to separate during the trial' of the case. The bill presenting the evidence was not filed until long after the adjournment of court for the term. It should have been filed during term time to authorize us to consider it. But we have read the evidence heard. It appears that the jury room is upstairs over tile district court room, and that the stairway leading to the jury room is some seven or eight feet from the door of the district court room. That during a recess of the court the jury retired to their room in charge of an officer. The jury came down the stairs and started to take their seats, when it was discovered that only 11 were present. The sheriff started up the stairway after the other juryman, when he was seen coming down. He explained that he was in the toilet when the other jurymen started downstairs, and he came on as soon as lie got out of the closet. The time from the time the 11 jurors came downstairs to the the time the last juror was coming down is estimated at from thirty seconds to a minute and a half. The record discloses it was impossible for him to have met any person. This in law would not be deemed a separation, and the court did not err in so holding.

The judgment is affirmed.


author: HARPER, J. DAVIDSON, J.

text:
    SWILLEY v. STATE.
    (No. 3314.)
    (Court of Criminal Appeals of Texas.
    Nov. 25, 1914.
    Rehearing Denied Dec. 23,1914.)
    1. CRIMINAL Law (§ 614) — Second Continuance-Absent Witnesses — Diligence.
    That defendant caused a subpoena to issue is .not a showing of diligence entitling him as a matter of right to a second continuance for absence of a witness; but it must be shown that the process was served and returned.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1312 — 1314; Dec. Dig. § 614.]
    2. Criminal Law (§ 614) — Second Continuance-Absent Witness — Diligence.
    It cannot avail defendant as diligence, as regards his right to a second continuance for absence of a witness, that a person was served with process issued by the state for such witness, if he was not such witness.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1312-1314; Dec. Dig. § 614.]
    3. Criminal Law (§ 614) — Second Continuance-Absent Witness — Consent of Defendant.
    As regards right of defendant to a second continuance for absence of a witness, there must be an affirmative showing that he was not absent with defendant’s consent.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1312-1314; Dee. Dig. § 614.]
    4. Criminal Law (§ 614) — Second Continuance-Absent Witness — Consent of Defendant.
    Regarding a second continuance for absence of a witness, who had testified at the examining-trial and habeas corpus hearing, the court could conclude one served with process as him, if him, was absent with consent of defendant’s counsel, who told him he need not attend, if, as he claimed, he was not such witness.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1312-1314; Dec. Dig. § 614.] -
    5. Criminal Law (§ 1175) — New Trial-Findings.
    Any inconsistency of an implied finding in fining, at the trial, an absent witness, and finding on testimony of defendant’s counsel, on the motion for new trial, that the person summoned was not such witness, cannot be complained of by defendant.
    [Ed. Note. — For other -cases, see Criminal Law, Cent. Dig. §§ 3179-3182; Dec. Dig. § 1175.]
    Davidson, J., dissenting.
    Appeal from District Court, Jasper County; A. E. Davis, Judge.
    John Swilley was convicted of murder, and appeals.
    Affirmed. -
    See, also, 166 S. W. 733.
    Bisland, Adams & Bruce and C. F. Stephens, all of Orange, 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.

This is the second appeal in this case. On this trial appellant was found guilty, and his punishment assessed at 10 years’ confinement in the state penitentiary.

The only bills of exception in the record complain of the action of the court in overruling appellant’s application for a continuance, which will hereinafter be discussed. The only other ground in the motion for a new trial alleges the insufficiency of the testimony to sustain the verdict. The evidence introduced in behalf of the state, if believed, fully supports the findings of the jury. The issues made by the testimony were fully and fairly submitted by the court in his charge, and submitted in a way not complained of by appellant. Appellant requested no special charges. So the only question to be decided is: Did the court err in overruling the application for a continuance?

It appears from the record that this indictment was found by the grand jury of Orange county, and while the case was pending in that court a subpoena was issued by the state for a witness by the name of Albert Oram. This subpoena was returned, saying witness not found, as he was then in Morgan City, La. The venue of the ease was changed to Jasper county, when a subpoena was again issued to Orange county for this witness; the return again stating him to be in Morgan City, La. The case was tried and resulted in a conviction, which judgment was by this court reversed; the opinion on the former appeal being reported in 166 S. W. 733. By reference to that opinion and to this record it is shown that appellant then sought a continuance on account of the absence of this witness, Albert Cram. So the application we are now considering is on account of the absence of this same witness. What diligence does the record disclose that appellant used to secure the attendance of this witness? The only showing made, in so far as diligence on his part is concerned, is that, after the term of court had begun at which his case was set for trial, he caused a subpoena to issue to Jefferson county for the witness. The motion does not show what officer this subpoena issued for the witness was placed in the hands of, or that it was ever placed in the hands of any officer in Jefferson county. The subpoena is not in the record, and, if it was ever placed in the hands of any officer in Jefferson county, no return has ever been made thereon. The appellant does not now claim to know that the witness is in Jefferson county, or that he was in Jefferson county at the time he had the subpoena issued directed to such county. He does not claim in his application that any one had so, informed him, or that he had ever seen said witness in said county; but he does state in his second application that he has. been informed that the witness is in the state of Louisiana. So, in so far as the efforts made by the defendant to secure the attendance of this witness are concerned, the diligence used is wholly insufficient in law on a second application for the same witness. Por he does not claim to know where the witness is located, or where he has been located at any time since the iast term of the court, nor what efforts, if any, he has made to learn the whereabouts of the witness, that he might be summoned, or if out of the state his depositions might be taken. In the case of Swofford v. State, 3 Tex. App. 85, this court held:

“In subsequent applications, provided for by article 2988 of Paschal’s Digest, however, we are of opinion that the application is not a matter of right, save in those cases only where it is .show affirmatively that such process as the law has provided and afforded had been, sued out, and not only, sued out, but actually served and returned into court. In such case, we apprehend, a party, even on a second application, would rightfully be entitled to a continuance. But suppose he has promptly availed himself of the process which the law grants, but that the process has not been served and returned. In such a case it seems equally clear to us that he is not entitled to the continuance as a matter of right; it then becomes a discretionary question with the court. The court will then inquire whether or not the defendant’s affidavit, ‘that he has a reasonable expectation of procuring the testimony at the next term of the court’ (Pase. Dig. art. 2988), is founded in 'truth and reason as well as in fact.”

If the appellant since the last term of court had not succeeded in locating this witness, what assurance could he give or did he offer to give the court that he would do so by the next term of the court? Under such circumstances, we cannot hold that the court erred in the premises in so far as the diligence used by the defendant to secure the attendance of this witness is concerned. However, the record discloses that the state was anxious also to secure the attendance of this witness; that the witness Oram had testified for the state at the examining trial and habeas corpus hearing held at Orange, and was present in court when the venue was changed to Jasper, Tex. One of the reasons this case was reversed on the former appeal was because the defendant, while a witness, was compelled to state and prove what Oram had testified to at the habeas corpus hearing, without showing that Cram was permanently beyond the jurisdiction of the court. The state had been seeking to secure the attendance of this witness, and had had process issued for him since the last term of the court, and the sheriff of Jefferson county had returned a subpoena showing that he had served the witness with process at Port Arthur, Tex., June 15th — just ten days before the trial. On the day the case was called for trial, the witness not appearing, an attachment was issued for him, which was returned with the statement that Oram had gone to Louisiana. Appellant’s contention is that this diligence used by the state should, and does in law, inure to his benefit, and in the motion for a new trial sets up these facts as a reason why a new trial should be granted on account of the absence of this witness. The state contested this motion, and evidence was heard thereon. Mr. Adams, one of defendant’s attorneys, was the first witness heard, and the state proved by him: That he was informed that the state had secured this witness to be served at Port Arthur, Tex. That two days before the cause was set for trial, having business at Port Arthur, he went there, and being desirous of conferring with the witness as to his testimony, when he got to Port Arthur he paid John Griffith $5 to locate for him the witness who had been served by the state as Albert Oram, and also informed Deputy Sheriff Sehmizer, who had made the return on the subpoena, that he desired to see the witness. That about 4 o’clock on the evening of June 23d (the cause being set for June 25th) Mr. Sehmizer introduced him to the person he had served, and introduced him as Albert Cram. That John Griffith and J. F. Smith were present. Mr. Adams says he invited all the gentlemen to take a drink with him, and all did so except the deputy sheriff and the witness Cram; they remaining in front of the saloon. After those who desired had taken their drink, he (Adams) asked Griffith to tell Cram he desired to talk with him, and Griffith went and got Cram and brought him to him. That he then talked with the person who had been served-with a subpoena some eight or ten minutes. That he claimed not to be Albert Cram, but said he was named Orrin Oram; that Albert was his brother, and he did not know where he was. That witness then asked if he should attend court, and he told him, if he was Albert Cram he should do so, but if in fact he was Orrin Oram he need not do so.

The deputy sheriff testified: That he introduced the' witness he had served with subpoena to appellant’s counsel, and that this person was known as Albert Oram in Port Arthur. That after the witness Cram had talked with appellant’s counsel he saw Griffith and appellant’s attorney in conversation after Oram had walked away, and, after Mr. Adams left, Griffith, remarked to him, “I will •bet that Cram does not go to Jasper.” And it appears that he did not go. Mr. Smith also testified that he was present when plaintiff's attorney was introduced to Cram, and that he took a drink with Mr. Adams and John Griffith, and as he walked away he saw Griffith go to Cram and tell him that Mr. Adams desired to see him, and Cram and Griffith went together to Adams; . that some ■30 minutes after this,. and after the parties had separated, he again met Cram, and Cram had agreed to meet him at a certain time and place and go with him to Jasper; that this was the last he saw of him. The record further discloses that this witness Cram, wheth-ed he be Orrin or Albert, took the train for Louisiana instead of Jasper, Tex., after this conversation. If the person served was Or-rin Oram, and not Albert Cram, and Albert Cram was not in fact found nor served with process, as hereinbefore shown, no sufficient •diligence had been used by appellant to secure his attendance as a witness; this being the second application for a continuance on •account of his absence. If the person served with process issued by the state was in fact Albert Cram,- the court doubtless felt that hut for the visit of appellant’s counsel the witness would have been in attendance on court, and the witness was absent with at least the implied consent of counsel, and under such circumstances the court would not err in overruling the application for continuance, for on a second application the record must affirmatively show that the witness is not absent by consent. Cocker v. State, 31 Tex. 498; Pullen v. State, 11 Tex. App. 89; Sargent v. State, 35 Tex. Cr. R. 325, 33 S. W. 364.

But appellant insists in this court that, ■as the court fined the witness Albert Cram $500 for failure to attend court in obedience to the service of the subpoena, this is a finding that it was in fact Albert Cram who was served by the process issued by the state. The evidence adduced on the motion for new trial shows that, when the witnesses were called, the court asked those in attendance if they had seen Albert Cram, and appellant’s counsel, Mr. Adams, answered that he had not. He explains this in his testimony, saying he made such answer at the instance of his co-counsel, as Cram had told him his name was Orrin, and he did not know where Albert was. He frankly admits now that perhaps he should have gone further and explained the matter fully to the court, instead of answering flatly, “No.” Anyway, it was at this time the court entered the fine against Albert Cram, and he had at that time heard no testimony that the person summoned was not in fact Albert Cram. Later, however, on the motion for a new trial, he heard the testimony of Mr. Adams ■and the testimony of Mr. Schmizer and Mr. ‘Smith, and a finding at that time that the person served was Orrin. Cram would present no contradictory findings, and this criticism by appellant of the court’s qualification to the bill of exception presents nothing meritorious. It was but natural and proper for the court to enter a fine against the witness when the case was called for trial, as the process showed the witness to have been served, and he did not attend court. This entry was made June 25th.

The motion for a new trial, on which hearing was had, was not filed until five days later — June 30th, the state’s contest being also filed on June 30th. If, on this hearing, the evidence convinced him that Albert Cram had not been served, but Orrin Cram had been served by mistake for Albert, there would be no inconsistency presented in his action. Especially should not appellant’s attorney complain of this finding. Albert Cram had testified at the examining trial and ha-beas corpus hearing. Doubtless the court thought, under such circumstances, that defendant’s attorney would know the witness, and, when he told the court that the man summoned at Port Arthur was not Albert Cram, the court should place reliance in such statement.

We are of the opinion the court did not err in overruling the motion for continuance, and refusing a new trial on account thereof in the light of the testimony heard on the motion for new trial.

The judgment is affirmed.

DAVIDSON, J.

(dis'senting).

Appellant was convicted of murder and given ten years in the penitentiary.

When the case was called for trial, a second application for continuance was overruled. At the previous term the first application had been overruled, and on the trial appellant was convicted. On appeal that conviction was set aside and reversal occurred. The application was made on account of the absence of Albert Cram, who was alleged to reside in Jefferson county. Appellant issued process for him, which seems not to have been returned. The state issued process for the same witness. The return of the sheriff shows it was served upon Albert Cram. Albert Cram was a very material witness, and his testimony would flatly contradict the state’s case on most material facts connected with the homicide. The diligence was sufficient for the reason it shows the witness was summoned in ample time to obtain his presence at the trial. If witness misled appellant as to what his testimony would be, diligence is ample. Branch’s Crim. Law, § 256; Richardson v. State, 57 Tex. Cr. R. 285, 122 S. W. 560; Adams v. State, 10 Tex. App. 677; Rankin v. State, 57 Tex. Cr. R. 132, 122 S. W. 25.

Attachment issued also for the witness when he failed to appear. The bill of exceptions shows after witness was served Mr. Adams, Mie of appellant’s counsel, went to Port Arthur in Jefferson county, where the witness was summoned, and, had a conversation with him. In this conversation the witness told Mr. Adams that his name was not Albert Cram, but Orrin Cram; that he was a brother of Albert Cram, and he did not know the whereabouts of Albert, his brother. It is also shown that during the investigation of this continuance, from the standpoint of the motion for new trial, while Mr. Adams was in Jefferson county he was introduced to a Mr. Cram as Albert Cram, and that he went to Port Arthur in part to see Cram to know what he would testify as to the facts of the case. When Cram told him his name was not Albert, but that it was Orrin, he then asked Mr. Adams whether or not he should attend court at Jasper. Mr. Adams answered if he was not Albert Cram he need not go, but if he was Albert Cram he should go. It is also shown that, when the application was presented, the court asked the question generally if anybody had seen Albert Cram. Receiving no reply, the court then turned to Mr. Adams and asked him if he had seen Mr. Albert Cram lately, and was informed by Mr. Adams that he had not, whereupon the court said from all these facts he would hold that the witness had never been served, but that a brother of Albert Cram, to wit, Orrin Cram, had been served instead of Albert Cram; that after having notice from the officers at the last term of the district court six months ago that Albert Cram was then in Morgan City, La., no attempt was made to take his depositions. The court was informed by Mr. Adams, after this case was tried, when the defendant was given time in which to prepare his motion for a continuance, that in consultation he (Mr. Adams) asked the other attorneys what he must say should the court ask him if he had seen Albert Cram, and that- they said to him, “Well, have you seen Albert Cram?” and was informed by Mr. Adams that he had not, and then they said, “Then tell the court you have not seen him,” and that he did as they had agreed that they should. It is further shown that, when the application for continuance was overruled, the court entered a fine against Albert Cram and a judgment nisi ordering process to issue. The amount of the judgment nisi was $500. Now the court finds as follows:

“Prom all the facts, the court holds that the witness Albert Cram was never served, but that a brother of Albert Cram, to wit, Orrin Cram, was served as the witness Albert Cram; that after having notice from the officer, at the last term of the district court six months ago, that Albert Cram was then in Morgan City, La., no attempt -was made to take his depositions. The court was also informed by Mr. J. T. Adams, after this case was tried, that when the defendant in this case was given time in which to prepare his motion for a continuance, that in consultation, he (Mr. Adams) asked the other attorneys what he must say should the court ask him if he had seen Albert Cram, and that they said to him, ‘Well, have you seen Albert Cram?’ and, ‘I said no,’ and then they said, ‘Well, then tell the court you have not seen him,’ and ‘that he did as they had agreed that he should.’ ”

The witnesses for the state, Smith and Schmizer, testified when Mr. Adams came to Port Arthur he asked them to locate the witness Albert Cram so he could talk with him. They finally did so, and in the evening they introduced the man to him as Albert Cram with whom Adams had the conversation. In this conversation Adams was informed by Cram that his name was not Albert, but Orrin, Cram. Cram asked Mr. Adams then if he should attend court. He said, “If you are not Albert Cram, there is no necessity for your going,” or, “you need not go,” or substantially this; but, “If you are Albert Cram, you had better attend court.” He was a stranger to Adams; the first time they had ever seen each other. Now, under this condition of the record, the court finds that Albert Cram was not served, and yet enters a judgment nisi against him fining him $500 for nonattendance upon the court, and yet all the process was served upon him as Albert Cram, and the officers indicate in their statements that he was Albert Cram. The court seems to find, with Mr. Adams, that he was not Albert Cram, but Orrin Cram, and proceeds to fine Albert Cram $500 for nonattendance on the court for process served upon Orrin Cram, and for this reason he says the diligence is not sufficient. I cannot agree with the trial judge. Appellant did not have to resort to depositions under the circumstances of this case. When the motion for new trial presented all these matters, the court should have granted a new trial. The witness was a most material witness under the showing made, and, if his testimony is true, it went directly to the very substance of the state’s ease. If, as the officers say, this was Albert Cram, and they served him a few days before court, the diligence was sufficient whether it was served for the defendant or the state. Diligence is not always the final test. Pair trial being guaranteed by the Constitution, it is far more important that material testimony be had. No accused citizen ought’to be rendered infamous on a test of strictest technical diligence. Having been served for the state, defendant had a right to take advantage of such service. He himself had issued -process, but for some unexplained reason it had not been returned by the officer. Subsequently that issued by the state was served and return made. Both parties believed he was Albert Cram, issued process for him, and the return shows it was Albert Cram. The officers believed he was Albert Cram, and their return on process as well as their testimony so indicates. The court did not find, and would not have been justified in finding, that Mr. Adams kept the witness away, or was Instrumental in keeping him away. The evidence shows to the contrary.

Under the circumstances of this ease, I am of opinion the court erred, and the judgment should be reversed and remanded. I cannot concur in this affirmance, and enter my dissent.


author: PRENDERGAST, P. J.

text:
    MERKEL v. STATE.
    (No. 3305.)
    (Court of Criminal Appeals of Texas.
    Dec. 9, 1914.)
    1. Rape (§ 51) — Sufficiency of Evidence.
    Evidence held sufficient to sustain a conviction of rape by force or threats.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 71-77; Dec. Dig. § 51.]
    2. Indictment and Information (§ 137)— Motion to Quash — Gbounds.
    Under Code Cr. Proe. 1911, art. 409, providing that any person, before the grand jury has been impaneled, may challenge the array or any juror, and that in no other way shall objections to the qualifications and legality of the grand jury be heard, a motion to quash the indictment because the grand jurors’ names had been published in a newspaper 40 days before the term of court without any challenge of any when impaneled, held properly denied.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 480-487; Dec. Dig. § 137.]
    3. Juby (§ 58) — Juby Wiieel Law — Constitutionality.
    Rev. St. 1911, arts. 5151-5158, providing that in counties containing a population of 20,-000 or more the tax collector, the tax assessor, the sheriff, the county clerk, the district clerk, or any of their deputies, shall meet and select from the qualified jurors the jurors for service in the district and county courts for the ensuing two years by writing their names on cards, placing their names in a wheel, and drawing therefrom, is constitutional.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. § 266; Dec. Dig. § 58.]
    4. Juby (§ 131) — Bias—Examination—Hypothetical Question.
    In a prosecution for rape, where defendant at the trial was 23 years of age, refusal of a hypothetical question to jurors on their voir dire, as to whether they would have any bias against a 35 years old man having sexual intercourse with a 16 or 17 year old girl, was not reversible error.
    [Ed. Note. — Fon other cases, see Jury, Cent. Dig. §§ 561-582; Dec. Dig. § 131.]
    5. Juby (§ 131) — 'Voir Diee — Examination-Discretion of District Attorney.
    The action of the district attorney in testing the jurors on their voir dire in asking, under the statute, if they had conscientious scruples as to the infliction of the death penalty, in some cases challenging therefor and in others not, was a matter wholly within his discretion.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 561-582; Dec. Dig. § 131.]
    6. Witnesses (§ 393) — Impeachment—Testimony of Grand Jueok.
    In a criminal prosecution, where the state put on grand jurors to show that the testimony of a witness for defendant before them differed from her testimony at the trial, the testimony of one grand juror that he translated her testimony, given in German, for the other jurors, was not objectionable because he was not sworn in the grand jury as a witness to make such translation.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1252-1257; Dec. Dig. § 393.]
    7. Criminal Law (§ 829) — Requested Instructions — Given Instructions.
    In a criminal prosecution, defendant’s requested special charge relative to impeaching testimony held properly refused, where the court’s charge covered that matter.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.]
    8. Criminal Law (§ 1092) — Bill of Exceptions — Time fob- Filing.
    Where a bill of exceptions was filed long after the adjournment of the court, the evidence as to a ground of exception, even if contained in the bill, could not be considered.
    TEd. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2919; Dee. Dig. § 1092.]
    9. Criminal Law (§ 942) — New Trial — Newly Discovered Evidence — Impeaching Evidence.
    A new trial will not be granted for newly discovered evidence going merely to the impeachment of a witness.
    [Ed. Note. — For other cases, see Law, Cent. Dig. §§ 2316, 2331, 2332; § 942.] Criminal Dec. Dig.
    Davidson, J., dissenting.
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    J. G. Merkel was convicted of rape by force or threats, and he appeals.
    Affirmed.
    D. A. McAskill, of San Antonio, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      Fop 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 rape by force or threats on Esther Koch, a young girl about 16 years of age, committed on or about July 17, 1913.

Some of the facts are established without any contradiction. Esther was a young German country girl, the daughter of a Gorman Methodist preacher. Very shortly prior to the alleged rape, she had lived in San Antonio as a servant for her aunt, who ran a rooming house. She was unfamiliar with the city of San Antonio. She had never seen nor heard of appellant prior to Sunday night, July 13, 1913, just three or fours days before the alleged rape. Appellant was a German 23 years old at the time of this trial in January, 1914. Something like 2% years before the alleged assault, he had married, but some year and a half before then had separated from his wife, but was not divorced from her. After his separation from his wife some year and a half before the alleged rape, he met a German woman, recently from Germany, whose name was Katy Sigmund, and he soon began living in adultery with her, and continuously so lived with her up to the time of the commission of this offense. He had gotten her pregnant. He had been living about San Antonio some months, but just a short time before this offense he moved in rather a sparsely settled portion of the country four miles from the city of San Antonio and lived at a house with the woman Katy, ostensibly as Ms wife, and the people in the neighborhood were so informed and regarded her. She was soon to be confined — perhaps some two months later. He wanted to hire some girl to go out to stay with her and help do the work until after she was confined. He applied to Esther’s aunt for such a girl and made arrangements with her by which he could hire Esther. For the first time on said Sunday night he met and saw Esther at church, with his reputed wife, and they, together, took Esther out with them that night to their country place in their buggy. Esther only stayed with them from Sunday night until late Thursday evening or early Thursday night following, when appellant and his reputed wife, Katy, took her back to her aunt’s. When she reached her aunt’s she was crying, in much distress, and at once told her aunt and uncle and others, in effect, that appellant had raped her. The next day two physicians examined her, and both testified that they examined her vagina, found the hymen ruptured, the vagina lacerated, and showed to be of recent origin. One of the physicians, Dr. Shropshire, testifying:

“She was lacerated, torn, evidently somebody had used her, had intercourse with her, or used their fingers, one or the other. * * * The hymen was ruptured. It looked to be of recent occurrence. It was black and blue as though it was extravasated, the blood under the skin.”

Of course, no statement of facts can portray the testimony of any witness the same as if the witness was seen and heard by the jury and lower court; but we will here give her testimony on direct examination substantially as given in the statement of facts:

“My name is Esther Koch. My father is Rev. ,T. F. Koch. I know J. G. Merkel. I first' met him on Sunday night at the German Methodist Church. A lady was with him whom he called his wife. He did not introduce me to her, but I heard him call her his wife. From there I went with them to their home four miles .put of San Antonio, somewhere in the neighborhood of the cement works. Nothing occurred the night we, got out there. I slept in the room where both of them were. The defendant always wanted to kiss me, and I told him, no, sir; my father learned me better, and I would have none of that. That occurred several times. The first time he tried to kiss me was on Tuesday, the second day I was there. That was in the house. His wife was with us there; it was in her presence. He would always want to take hold of me, and I would push him away. I said I would not have that. We were all in the kitchen at one time” (this seems to have been Wednesday morning), “and he picked me up and carried me out. I fought as much as I could when he picked me up; I wanted to stay in the kitchen with his wife. He put me on a cot” (this, we take it, was Thursday evening, or, at any rate, when he had the act of sexual intercourse), “took off my clothing, and my underwear. While he was taking off my underwear, I fought him as much as I could. I was crying and hollering. As soon as he took me up I began to cry. I asked him to let me alone. lie was by the side of the bed when he took my underwear off, and when he was taking my underwear off I resisted him as much as I could; I fought him. I was unwilling for him to tak,e my underwear off. I did not agree to any of these things I have testified to. After he took my underwear off, he got on the bed and got on me, and when I cried out he held my mouth shut. He told me if I didn’t quit hollering he would cut my throat, and after awhile he would cut his. This was after we got through. I saw him have a knife in his hands. I believe the knife was shut. When he got on me, he took out his privates and put his privates in me. I was refusing to let him do that. It caused me a whole lot of pain. After he had finished, he went to his wife; she had fainted. She was just by the side of the bed where I was, and I was crying. After he had finished, we begged him to take me home. I begged him, and she begged him. He said, no, she wasn’t able to go, and he couldn’t bring me home. I didn’t know the way home, I had never been in San Antonio before I came to stay with my aunt. He told me if I told what had happened he. would go to jail and my name would be no account any more. My period of sickness had come on a short time before this, and after he had finished with me I saw some blood, about a wash pan full.' I was sitting over the wash pan so the blood could run into it. His wife after-wards begged so much that he brought me home, and when he brought me home it was in the afternoon, dark. He took hold of me twice while I was out there. He took hold me the day before, for the first time; took hold of my hands and dragged me along on the floor and threw me on the bed. He wanted to do me, and I said, ‘Let me alone.’ I was crying at that time. He said he wanted to play with me. He put his hands on my underwear, and when he took my underwear off I told him, ‘No.’ I used the German language in talking. I only speak English since I am here, just a little at school. Mr. Mer-kel told me if I told anybody what had occurred he would not bring me home, and I told him I wouldn’t say anything. After we started home, he wanted to turn back if I wouldn’t promise not to tell. When I got home, I told my auntie, and my uncle, and all of them. I told them as soon as I got home.”

Taking her. testimony as a whole, she shows that he had intercourse with her only once; that he first tried to do so on Wednesday morning; she stating on cross-examination:

“On Wednesday morning Mr. Merkel came into the kitchen and dragged me out by one hand, and laid me down on the bed, unbuttoned my drawers, and took them off, and did something to me; but he did not put his private organ' in my private organ that morning.”

Appellant admitted that he had intercourse with her on Thursday morning, and was about to have intercourse with her again that evening; hut his reputed wife was present and raised so much trouble, and fainted, that he desisted.

The appellant, by his testimony and that of said woman with whom he lived in adultery, would show that this 16 year old, inexperienced, country girl beguiled him, and that she induced him to have sexual intercourse with her in the presence of said woman and under the revolting circumstances shown. In other words, that she induced him to copulate with her, and that it was not only willingly done on her part, but at her solicitation. The jury did not believe tbis, although the issue was submitted in bis favor by the court in the strongest possible way for him.

In our opinion the evidence was sufficient to justify the conviction, and we cannot disturb the verdict of the jury. The court, in his charge on this issue, submitted everything that the law would authorize in appellant’s favor. No objection is made to the charge on this question. Appellant did request a charge for peremptory acquittal, but this was properly refused.

Appellant made a motion to quash the indictment, because the grand jurors’ names were known publicly and published in the newspapers some 40 days before the term of court. No challenge of them or either of them was made at the time they were impaneled. The statute (O. O. P. art. 409) is:

“Any person, before the grand jury has been impaneled, may challenge the array of jurors or any person presented as a grand juror; and, in no other way, shall objections to the qualifications and legality of the grand jury be heard.”

This law shows appellant’s motion could not be sustained. All the decisions are to the same effect. See some of them cited under said article of the Procedure.

Appellant made a motion to quash the special venire on various grounds. He attacked the constitutionality of section 1 thereof by the Acts of 1911, p. 150 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5151). See R. S. arts. 5151-5158. The first act on this subject was passed in 1907 (page 269). The amendment of section 1 of that act by the act of 1911, supra, removed even some of the apparent objections that had been made to that section of the 1907 act. This law has been held constitutional by this and the civil courts so long, and the question discussed so thoroughly, we regard it as wholly unnecessary to further discuss it. We cite some of the cases holding the law constitutional. Smith v. State, 54 Tex. Cr. R. 298, 113 S. W. 289; Logan v. State, 54 Tex. Cr. R. 74, 111 S. W. 1028; Huddleston v. State, 54 Tex. Cr. R. 93, 112 S. W. 64, 130 Am. St. Rep. 875; Brown v. State, 54 Tex. Cr. R. 121, 112 S. W. 80; Jones v. State, 54 Tex. Cr. R. 507, 113 S. W. 761; Oates v. State, 56 Tex. Cr. R. 571, 121 S. W. 370; Rasor v. State, 57 Tex. Cr. R. 10, 121 S. W. 512; Beaver v. State, 63 Tex. Cr. R. 581, 142 S. W. 11; Dallas, etc., St. R. Co. v. Chase (Civ. App.) 118 S. W. 783; Dallas Consol. Electric St. R. Co. v. Chambers, 55 Tex. Civ. App. 331, 118 S. W. 851; Northern Tex. Trac. Co. v. Danforth, 53 Tex. Civ. App. 419, 116 S. W. 148; Houston Elec. Co. v. Faroux (Civ. App.) 125 S. W. 922; Rice v. Lewis (Civ. App.) 125 S. W. 961.

Appellant has two bills of exceptions on the refusal of the court to permit him to ask the special veniremen certain questions on their voir dire examination. The bills nor record otherwise shows what examination was made of the jurors on their voir dire. We do not understand from the bills or otherwise that it is claimed any juror had any bias or prejudice against appellant personally. C. C. P. art. 692, subd. 12. In fact, the record would indicate the reverse of this. The questions asked were based on the hypothesis of whether they would have bias or prejudice against a 35 year old man having sexual intercourse with a 16 or 3.7 year old girl. As we understand the questions, they were not for the purpose of showing, as stated, any bias or prejudice against appellant, nor that they could not try him in this case impartially, but were directed towards their bias, etc., against the crime with which he was charged and to a hypothetical state of fact which was not shown to exist in this case. As stated above, the record shows that appellant was only 23 years old when this case was tried, not 35, as stated in the hypothetical question. As the matter appears, we think it does not present error. The law is, as stated in 1 Thomp. on Trials (2d Ed.) p. 117:

“Hypothetical questions, that is, questions as to what the juror would or would not decide in a supposed state of evidence, are not allowed,” citing' several authorities.

As said by this court in Mason v. State, 15 Tex. App. 549:

“It was the duty of the court to see that a jury was impaneled, composed of men who were free from all bias for or prejudice against the defendant; who were impartial towards either the state or the defendant. In determining as to the fitness of a juror, the question is largely one of discretion with the trial judge. He has the proposed juror before him, observes his manner of answering questions, his appearance, and many other indications which cannot be brought before this court; and hence the trial judge is in a much better condition to pass upon the fitness of the individual to serve as a juror in the case, than this court can be from the record alone. Such being the case, this court will not revise such action of the trial judge unless it should be made apparent to us that the trial judge had abused the discretion confided to him, to the injury of the defendant’s rights, or that he had infringed the law. Ray v. State, 4 Tex. App. 450; Gardenhire v. State, 6 Tex. App. 147; Wade v. State, 12 Tex. App. 358.”

Again, as said by this court in Pierson v. State, 18 Tex. App. 559:

“It has been well said: ‘The rule is well settled that it is the duty of the court to superintend the selection of the jury, in order that it may be composed of fit persons. Large discretion must be confided to the trial court in the performance of this duty, nor will the action of the court in this behalf be made the subject of revision, unless some violation of the law is involved or the exercise of a gross or injurious discretion is shown.’ Thompson & Merriam on Juries, § 258. And it has been repeatedly held by this court that, in determining as to the fitness of a juror, the question is one largely of discretion with the trial judge, and his action therein will not be revised by this court, unless it be made apparent that the discretion has been abused to*the injury of the defendant’s rights, or that the law has been infringed.”

See, also, James v. State, 167 S. W. 727; Cooper v. State, 162 S. W. 364; Ellis v. State, 154 S. W. 1010.

district attorney in testing the jurors on their voir dire examination asked, under the statute, if they had conscientious scruples in regard to the infliction of the death penalty. In some instances the dis-disattorney made this a cause for chal-chaland in others he did not. The appellant objected to this. This was a matter wholly within the discretion of the district attorney, and the appellant could not legally complain of his action.

The appellant had said woman he was living in adultery with, Katy Sigmund, testify in his behalf. It seems she spoke German only, or English very imperfectly. She testified before the grand jury. The state put on some of the grand jurors to show that her testimony before the grand jury was different in some particulars from what it was on this trial. One of these jurors testified that he translated for the other jurors some of her testimony. Appellant objected to this grand juror’s testimony on this point because the grand juror was not sworn in the grand jury as a witness to make such translations. This shows no error.

The appellant requested a special charge relative to the evidence impeaching said woman. The court, as we take it, copied almost literally, at least substantially, this charge in his main charge to the jury and refused appellant’s. The court’s charge covering that requested by appellant, it was proper to refuse his.

Appellant has one bill complaining that the court erred in overruling the amended motion for new trial Wherein he set up newly discovered testimony. No such motion is in the record. From the bill on the subject, however, it is shown that said claimed newly discovered testimony could have been used solely for the purpose of impeaching the state’s witness, or, as stated in the bill, “it raises a doubt as to the truthfulness of Esther Koch.” The record also discloses that the court heard evidence, affidavits, on this subject; but what they were the record does not disclose. The bill was filed long after the adjournment of the court, and the evidence could not be considered on that ground, even if it had been contained in the bill. Graham v. State, 163 S. W. 730, and cases collated. Besides, it is the uniform holding of this court that new trials will not be granted for newly discovered evidence, even if newly discovered, which goes merely to the impeachment of a witness.

The judgment is affirmed.

DAVIDSON, J., dissents.