text:
    BRADSHAW et al. v. MARMION, Mayor, et al.
    (No. 607.)
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 12, 1916.)
    1. Municipal Coepoeations <&wkey;108—Ordi-nance—Approval by Voters—“Majority of Qualified Voters.”
    Under Houston Heights Charter (Loe. & Sp. Acts 32d Leg. Reg. Sess. c. 16) art. 5, § 6, providing that a special election of the qualified voters shall be called to consider an ordinance increasing the salary of mayor or eouncilmen, and that, if a “majority of the qualified voters” shall vote in favor of said ordinance, it shall become effective, it is not necessary that a majority of the qualified voters of the city, but only a majority of those voting at that election, vote in favor of the ordinance.
    [Ed. Note.—For other eases, see Municipal Corporations, Dec. Dig. <S=M08.
    For other definitions, see Words and Phrases, First and Second Series, Majority.]
    2. Municipal Coepoeations <@=»63(1)—Ordi-nance-Adoption—Emergency.
    Under article 7, § 4, of that charter, providing that no ordinance shall be finally passed on the day it is introduced, except in case of public emergency, the declaration of the council that an emergency exists, requiring the adoption of an ordinance increasing the salary of the mayor on the day of its introduction is binding on the courts.
    [Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 155, 1879; Dec. Dig. &wkey;63(l).]
    3. Municipal Corporations <&wkey;108 —Ordinance—Approval by Voters—Qualifications of Voters. ’ ‘
    The .provision of article 4, § 1, which section pertains to the issuance of bonds and voting taxes to pay the», that in all elections to determine the expenditure of money or the assumption of a debt only taxpayers shall be qualified to vote, does not apply to an election called under the provision of article 5, § 6, upon the adoption of an ordinance increasing the salary Of the mayor.
    [Ed. Note. — For other cases, see Municipal Corporations, Dec. Dig. &wkey;>108.]
    Appeal from District Court, Harris County; Chas. E. Ashe, Judge.
    Suit by W. D. Bradshaw and others against J. B. Marmion, as Mayor of the City of Houston .Heights, and others. Prom an order dissolving the temporary injunction theretofore issued, the plaintiffs appeal.
    Affirmed.
    Sam, Bradley & Fogle, of Houston, for appellants. Cole & Cole, of Houston, for appel-lees.
   HIGGINS, J.

Appellants, as citizens and taxpayers of the city of Houston Heights, in Harris county, filed this suit against said city, J. B. Marmion, mayor thereof, Richter, Trautwein,vLuck & Andrews, aldermen of the city, and C. -E. Butzer, clerk and auditor thereof, alleging:

That such city was a municipal corporation, with a population of about 11,000, having a special charter granted by the Legislature. That the mayor and four aldermen constitute the city council thereof, and that section 6, art. 5, of the charter of the city reads as follows:

“Compensation oif Officers. — The compensation of the mayor shall be the sum of $300.00 per annum, to be paid in monthly installments on the first day of each month. The compensation of each of the aldermen shall be the sum of $120.00 per annum, to be paid in monthly installments on the first day of each month. The salaries of the above-named officers shall not be increased until such time as the business of the city shall render it necessary. Thereupon the city council shall by ordinance fix the salaries of the mayor and aldermen at such amounts as it .deems just. After said ordinance is passed, the mayor shall call an election of the qualified voters of the city of Houston Heights to be held thirty days after the passage of said ordinance, and if a majority of the qualified voters shall vote in favor of said ordinance said ordinance shall become effective, otherwise said ordinance shall be void, and no election shall be held for a similar purpose within twelve months thereafter.
“The compensation of all of the other officers named in this act shall be fixed by the city council and may be increased or diminished at any time.”

That on, to wit, the 3d day of May, 1915, the council of said city adopted the following ordinance:

“An ordinance of the city of Houston Heights increasing the salary of the mayor of the city, and fixing the time and manner of its payment:
“Whereas, the duties of the office of mayor in Houston Heights have become so numerous as to require the exclusive attention of the mayor of .the city to the public business of his office, and such duties have increased to such an extent as to render it necessary that the salary of such official be increased:
“Be it therefore ordained by the city council of the city of Houston Heights, Tex.:
“Section I..That the ■ compensation of three hundred ($300.00) dollars per annum provided by section 6 of article 5 of the city charter as the salary of the mayor be and the same is hereby increased to the sum of eighteen hundred ($1,800.00) dollars per annum, the same to be paid in monthly installments of one hundred and fifty ($150.00) dollars per month, on the first day of each month for the services rem dered for the preceding month.
“See. II. Be it further ordained that for and in consideration of the above increase of salary, that in addition to the general duties im'posed upon the mayor of the' city charter of the city, the further duty is hereby imposed upon him to devote not less than eight (8) hours a day to the performance of the duties of his office and to the affairs of the city, including a general supervision of all of the street and bridge work, as well as to all the business matters' of the city requiring the attention of the mayor.
“Sec. III. The duties of the office of mayor having become, so onerous, and the salary of the office being so grossly inadequate for the services that are required by the city, a public emergency is deemed to exist, requiring the passage of this ordinance on the date of its introduction, and, the mayor having requested in writing a suspension of the rules and of the charter requirement that no ordinance be passed on the date of its introduction, the request is granted, and such rules and charter requirement suspended, and it is hereby ordained that this ordinance shall take effect on the date of its introduction and approval by the mayor, and by finally being ratified by the qualified voters of Houston Heights, as required by the charter.
“Passed this 3d day.of May, A. D. 1915.”

That the fifth paragraph of section 4, art. 7, of the charter reads:

“No ordinances or resolutions shall be passed finally on the date it is introduced, except in case of public emergencies, and then only when requested by the mayor in writing: Provided, that no ordinance or resolution making a grant of any franchise or special privilege shall ever be passed as an emergency measure.”

That the ordinance above mentioned was introduced and passed on the same day and at the same meeting, and, while it recites that “a public emergency is deemed to exist,” no such emergency in fact existed, but the ordinance was rushed to final passage to prevent deliberate consideration thereof. That the mayor, Marmion, issued a call for an election, and notice thereof was published, which election was held on June 5, 1915. That 488 persons voted at such election. That a large number of those voting, as plaintiffs were informed and believe, and upon such information and belief alleged, to wit, about 100 of such voters, were not qualified to vote at the election, because they did not pay taxes .on property in said city, said election being for the purpose of determining the expenditure of money. That section 1 of article 4 of the charter provided:

“In all elections to determine the expenditure of money for (or) the assumption of debt, only those shall be qualified to vote who pay taxes on property in said city, and are legally qualified voters in said city of Houston Heights.”

That plaintiffs were unable to make a definite allegation respecting the qualification of said voters, because Marmion had denied them the opportunity to inspect the list of voters at such election. That there are about 1,400 qualified voters in the city, and only 488 voted at tlie election, and only 288 of such voters voted in favor of the ordinance. That the voters so voting for such ordinance were less than the majority of the voters' qualified to vote at said election, by reason whereof the requisite number of votes legally required for the adoption of said ordinance were not cast. That the defendants made canvass of the result of said election and declared that said ordinance had been adopted and ratified thereby.

A temporary injunction was asked restraining the defendants from proceeding further under the ordinance and restraining Marmion from collecting any greater salary than that allowed by the charter of the city, to wit, the sum of $25 per month, and restraining Butzer from issuing vouchers or warrants to him for any greater amount as salary.

No point is made as to other allegations of the petition, and they are therefore not stated.

A temporary writ of injunction was issued, as prayed for, and thereafter the same” was dissolved upon a general demurrer interposed by the defendants. From the order of dissolution this appeal is prosecuted.

Appellants urge five propositions in support of their contention that the demurrer was improperly sustained and injunction dissolved, as follows:

“(1) Language found in a legislative enactment must be presumed to have been used advisedly, and with no intent to imply any different meaning from that which the words naturally convey.”
“(2) The use of different phraseology in the same act of the Legislature indicates that a different meaning was meant to be attached to the language as changed.”
“(3) Provisions in a city charter authorizing the imposition of a tax or other burden on the taxpaying voters should be strictly construed.”
“(4) All the conditions precedent provided by a city charter for the imposition of a tax' on the property taxpayers must be strictly complied with.”
“(5) When a city charter provides that an ordinance increasing the mayor’s salary can become effective only ‘if a majority of the qualified voters shall vote in favor of said ordinance,’ that precludes the ratification of such ordinance by merely a ‘majority of votes cast.’ ”

For the purpose of this opinion, it may be assumed that the first four propositions are correct The vital issue in the case is presented by the fifth. Upon this phase of the case the rule is thus stated in 15 Cyc. 388:

“When a Constitution or a statute requires that an officer shall be chosen or a question decided by a majority of the votes of a county or .other civil division, this does not mean that a majority of all the persons entitled to vote shall actually vote in the affirmative, but that the result shall be determined by a majority of the votes cast. All qualified voters who absent themselves from an election duly called are presumed to assent to the express will of the majority of those voting, unless the law providing for the election -otherwise declares. Any other rule would be productive of the greatest inconvenience and ought not to be adopted, unless the legislative will to that effect is clearly expressed. This question has frequently been before the courts under constitutional and statutory provisions authorizing counties, towns, and cities to contract debts for special purposes, by the vote of a specified majority, usually two-thirds, of the qualified voters of such counties, towns, and cities at special elections called for the purpose of submitting propositions to incur such debts ; and it has generally been held that the requisite majority of the vote actually cast is sufficient, irrespective of the number of persons entitled to vote.”

In McOrary on Elections, at section 208, it is said:

“Where a statute requires a question to be decided or an officer to be chosen by the votes of ‘a majority of the-voters of a county,’ this does not require that a majority of all persons in the county entitled to vote shall actually vote affirmatively, but only that the result shall be decided by a majority of the votes cast, provided always that there is a fair election and an equal opportunity for all to participate. In such a case the only proper test of the number of persons entitled to vote is the result of the election as determined by the ballot box, and the courts will not go outside of that to inquire whether there were other persons entitled to vote who did not vote. The ‘voters of the county’ referred to by all such statutes are necessarily the voters who vote at the election, since the result in each case must be determined by a vote of the ballots cast, and not by an inquiry as to the number not cast. This doctrine is well settled by the authorities.”

While there are cases in which it has been held that an aifirmative assent must be given by the requisite majority of voters by going to the polls and voting, yet the great weight of authority supports the text cited. It has been so held in Texas, and, in view of such holding, a review of the conflicting cases from other states would be profitless.

We therefore conclude that the fifth proposition is untenable. Alley v. Denson 8 Tex. 297; City of Ft. Worth v. Davis, 57 Tex. 225; Werner v. City of Galveston, 72 Tex. 22, 7 S. W. 726, 12 S. W. 159. See, also, Carroll County v. Smith, 111 U. S. 556, 4 Sup. Ct. 539, 28 L. Ed. 517.

Under the fourth proposition, the contention is advanced that the ordinance was invalid because no public emergency existed authorizing its final passage on the same day it was introduced. In reply to this it is sufficient to say that the ordinance asserts and specifies an emergency. This is conclusive, and is not subject to review by the courts. Day, etc., v. State, 68 Tex. 526, 4 S. W. 865; McLane v. Paschal, 8 Tex. Civ. App. 398, 28 S. W. 711.

It is further urged in support of such proposition that the petition alleges about 100 of those voting at the election ■ were not qualified voters, because they did not pay taxes on property in the city. This contention is based on section 1 of article 4 of the charter, which provides that:

“In all elections to determine the expenditure of money for [or] the assumption of debt, only those shall be qualified to vote who pay taxes on property in said city, and are legally qualified voters in said City of Houston Heights.”

But this provision of the charter is in a section pertaining to the question of the issuance of bonds and voting taxes to pay same, and cannot he extended to furnish the definition of the legal qualifications of voters in an election called to pass upon an increase of the mayor’s salary under an entirely different article and section of the charter. An election to determine whether the mayor’s salary would be increased is not to be considered within the purview of an “election to determine the expenditure of money or the assumption of debt.” Such language manifestly refers to the issuance of bonds, and imposition of taxes covered by said section 1 of article 4, wherein the language is used.

The charter of the city of Houston Heights will be found in Local and Special Laws 32d Leg. (Reg. Sess.) p. 102.

Affirmed.
      ©sMTor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: DAVIDSON, J.

license: Public Domain

text:
    STEPHENS v. STATE.
    (No. 4150.)
    (Court of Criminal Appeals of Texas.
    Oct. 11, 1916.)
    1. Cexminal Law <@^829(9) — Trial—Instruction — Requests—Burden or Proof.
    In a prosecution for violating the local option law, where the court charged that in all criminal cases the burden of proof is on the state, defendant being presumed innocent until his guilt is established by legal evidence, beyond a reasonable doubt, and that the jury should acquit if they had a reasonable doubt as to defendant’s guilt, the refusal of the requested charge that in the trial of a criminal case the burden of proof is on the state throughout, and never shifts to defendant, and that, if the jury had a reasonable doubt of defendant’s guilt, they should acquit, was not error.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. &wkey;jS29(9).]
    2.'Criminal Law &wkey;>814(8, 9) — Trial — Refusal to Submit Plea or Former Jeopardy.
    In a prosecution for violating the local option law, where no evidence was offered to support defendant’s plea of former jeopardy, the court’s refusal to submit the plea was not erroneous.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1979; Dec. Dig. <S&wkey;814(8, 9).]
    Appeal from Fannin County Court; S. F. Leslie, Judge.
    Tom Stephens was convicted of violating th£ local option law,, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

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

The record contains four bills of exception. The first two were refused by the court for the reason they recite matters which did not occur on the trial. The court states no such questions were asked and no bill of exceptions could have been reserved, and he refused to prepare and file a bill of exceptions, for the reason that the transaction did not occur and the questions did not take place. This part of the record stands with the statement of the county judge, and no other bill was prepared.

The third bill of exceptions recites that the court erred in refusing to charge the jury that:

“In the trial of a criminal case the burden of proof is on the state throughout the trial, and never shifts to the defendant, and, if in this case you have a reasonable doubt of the defendant’s guilt, you will find him not guilty.”

W!e think there was no error in this under the authorities of Huggins v. State, 42 Tex. Cr. R. 364, 60 S. W. 52; Lewis v. State, 59 S. W. 887; Robinson v. State, 63 S. W. 870; and Clark v. State, 59 S. W. 887. In this connection it may be stated that the court’s charge sufficiently presented the burden of proof, reasonable doubt, and presumption of innocence. We find the following charge given by the court:

“In all criminal cases the burden of proof is on the state. The defendant is presumed to be innocent until his guilt is established by legal evidence beyond a reasonable doubt, and in case you have a reasonable doubt as to the defendant’s guilt you will acquit him and say by your verdict not guilty.”

Under the cited authorities this matter was sufficiently presented.

Another bill recites that the court erred in not submitting appellant’s plea of jeopardy. The court refused this with the explanation that:

“Defendant filed his plea of former jeopardy, and same was noted on the docket. Defendant offered no proof of same, and did not even present to the court a charge submitting same to the jury, although the charge of the court was submitted to defendant and his counsel'before same was given to the jury, and ample time was given to defendant and his counsel to object to same and file any charges defendant might have desired to give to the jury. No objection to the charge was made by the defendant and his attorney, and no charges were requested in writing by defendant.”

An inspection of the statement of facts shows there was no evidence offered to support the plea of jeopardy, and the plea on its face compared with this record shows it could not present the question of jeopardy. Appellant had been previously tried for pursuing the business of violating the local option law. On that trial the jury acquitted. His jilea of former acquittal in that case was made the basis of his plea here. Under these circumstances we find there was no error on the part of the court.

The evidence is in conflict. The state’s testimony shows a case which the jury believed. The defendant denies the transaction. It was the issue, solved by the jury against the accused.

Finding no reversible error in the record, the judgment will be affirmed.
      <&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, J.

text:
    BOOHER v. STATE.
    (No. 4181.)
    (Court of Criminal Appeals of Texas.
    Oct. 11, 1916.)
    1. Larceny <&wkey;40(4) — Variance.
    Upon an information alleging theft of 25 turkeys of the aggregate value of $35, proof that 5 turkeys were stolen is sufficient to support a verdict of guilty of theft of property under $50 in value.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 110, 125; Dec. Dig. &wkey;40(4).]
    2. Criminal Law <&wkey;636(8) — Trial — Conduct — Presence oit Accused — Reception oe Verdict.
    In a misdemeanor case in which a jail penalty is necessarily a part of the punishment, it is not necessary that defendant be present when the verdict is received, under Code of Criminal Procedure.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1469, 1478-1480; Dec. Dig. <&wkey;>636(8).]
    Appeal from Stephens County Court, Jesse R. Smith, Judge.
    Pat Booher was convicted of theft of property. under $50 in value, and appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of theft of property under $50 in value, and his punishment assessed at a fine of $50 and 90 days’ imprisonment in the county jail.

The information alleged the theft of 25 turkeys, of the aggregate value of $35. Under the evidence there were identified only 5 of the stolen turkeys, of the value of about $5. Appellant asked a special charge presenting the issue that, as the state alleged the theft of 25 turkeys, it must prove that appellant had stolen that number, and, if the evidence showed that a less number was taken by appellant, to return a verdict of not guilty. Appellant sold a number of turkeys to G. W. Troxall, and 5 of the turkeys so sold were identified as 5 of the stolen turkeys. Appellant asked a charge that, if the turkeys sold to G. W. Troxall — some 20-odd in number — were not the identical turkeys stolen from Sam Lockhart, to acquit him. The law of this state is that, although the information alleged the theft of 25 turkeys, yet proof that one turkey was stolen by appellant would authorize a conviction for the theft of the one turkey, and, as the evidence would authorize the jury to find that 5 of the turkeys sold by appellant to Troxall were a portion of the turkeys stolen from Lockhart, the verdict would be authorized, and there was no error in refusing the two special charges above mentioned. Grissom v. State, 40 Tex. Cr. R. 147, 49 S. W. 93; Pones v. State, 43 Tex. Cr. R. 201, 63 S. W. 1021; Kersh v. State, 45 Tex. Cr. R. 451, 77 S. W. 790.

The only other question raised is that the court erred in receiving the verdict in the absence of the appellant, this being a misdemeanor in which a jail penalty was necessarily a part of the punishment. This question has been before this court several times, and it has always held appellant’s contention not well taken under the provisions of our Code of Criminal Procedure. It is fully discussed in Wyatt v. State, 49 Tex. Cr. R. 194, 94 S. W. 219, and the provisions of the Code pointed out.

The judgment is affirmed.


author: PRENDERGAST, P. J.

text:
    MEISSNER v. STATE.
    (No. 4180.)
    (Court of Criminal Appeals of Texas.
    Oct. 11, 1916.)
    Fences <§=^28(2) — Removal — Criminal Responsibility — Indictment.
    An indictment for failure to remove a fence under article 1245, Pen. Code 1911, which did not aver that the person giving notice to remove the fence was, at the time of such notice, the owner _ of the land on which and of the fence adjoining or connected with which was 'the fence of accused, was fatally defective.
    Ed. Note. — For other cases, see Fences, Cent. Dig. § 65; Dec. Dig. <&wkey;28(2).]
    Appeal from Hamilton County Court; J. L. Lewis, Judge.
    Sam Meissner was convicted for failing to remove his fence, and appeals.
    Reversed and dismissed.
    H. E. Chesley, of Hamilton, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

The appellant was convicted for negligently or willfully failing to disconnect his fence and remove it from that of Otto Schrank, under article 1245, P. O. Said article is:

“Any person who is the owner of any fence wholly upon his own land to which the fence of another is adjoined, or connected in any manner, may require the owner of any such fence to disconnect and withdraw the same back on his own land by first giving notice, in writing, for at least six months, to such person, his agent, attorney, or lessee, to disconnect and withdraw his fence back on his own land. Anjr person who shall negligently or willfully fail to disconnect his fence and remove the same back upon his own land,- after the expiration of said notice, shall be fined in any sum not less than ten nor more than fifty dollars; and each ten days’ failure, after such notice shall constitute a separate offense for the violation of the prpvi-sions of this article.”

The charging part of the indictment is:

“That on or about the 25th day of January 1916, and anterior to the presentment of this indictment, in the county of Hamilton and state of Texas, one Otto Schrank was the owner of a fence wholly upon his own land, to which said fence the fence of Sam Meissner was then and there joined and was connected, and the said Otto Schrank did, on the 10th day of July A. D. 1915, 'at least six months prior to the day and date first above written, give notice in writing to the said Sam Meissner, demanding and -requiring that he, the said Sam Meissner, disconnect and withdraw his fence hack on his land, and the said Sam Meissner, on the 25th day of January, A. D. 1916, and after the expiration of the said six months’ notice, and for more than ten days thereafter, did unlawfully, negligently, and willfully fail to disconnect his said fence and recover the same back npon his own land.”

Appellant attacks the indictment on various grounds. It is unnecessary to notice but one, which we think is good.

The statute makes it necessary that six months’ notice shall be given to an accused before he can bd required to disconnect and withdraw his fence back on his own land from that of another person. It also requires that at the time this notice is given, the person who gives it shall then, not subsequently, be the owner of the fence, and it must be wholly upon his own land, and it is necessary for the indictment to make these allegations. It will be seen from the indictment copied above that the allegation does not, either directly or indirectly, aver that Mr. Schrank was the owner of the fence or land at the time he gave the notice to appellant to disconnect and withdraw his fence from Schrank’s, it alleging that the notice was ■given on July 10, 1915. The indictment does not allege that he was then either the owner of the fence or the land on which it was situated, but it alleges that, on or about January 25, 1916, he was the owner of a fence wholly upon his own land. Hence we think the indictment in this particular was fatally defective.

It, therefore, becomes our duty to reverse and dismiss this cause, which is accordingly ordered.
      <8m»For other cases see same topic and .KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    FRITZ v. STATE.
    (No. 4190.)
    (Court of Criminal Appeals of Texas.
    Oct. 18, 1916.)
    ■Ceiminal Law <§=>1159(3) — Appeal — Conflicting Evibence — Review.
    A conviction on conflicting testimony and sustained by the testimony of the state’s witness■es will not be disturbed on appeal.
    .[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3076; Dec. Dig. <§=>1159(3).]
    Appeal from Harris County Court, at Law; •S. B. Ehrenwerth, Special Judge.
    Willie Fritz was convicted of simple assault, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the .State.
   PRENDERGAST, P. J.

Appellant was convicted of a simple assault, and fined $5.

The sole question is whether or not the ■evidence was sufficient to sustain the conviction. The testimony of the state’s witnesses was clearly sufficient to sustain the •conviction. That of the defendant was clearly sufficient to show that he was not guilty. ■The case was tried before the judge without .a jury. He saw and heard all the witnesses -testify, and of course was better able to tell who was telling the truth than this court can possibly be.

We are not authorized to disturb the verdict, and the judgment is affirmed.


text:
    SELF v. STATE.
    (No. 4169.)
    (Court of Criminal Appeals of Texas.
    Oct. 11, 1916.)
    Ceiminal Law <§=>780(3) — Instbuctions — Testimony oe Accomplices.
    The usual stereotyped form of charge with reference to accomplice testimony in seduction cases is not erroneous.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1861; Dec. Dig. i®==>780(3).]
    Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.
    Fred Self was convicted of seduction, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of seduction; his punishment being assessed at five years’ confinement in the penitentiary.

We are of opinion without stating the evidence, that under the decisions the evidence justified the action of the jury and the trial court in his rulings in regard to the sufficiency of the facts. The c.ourt gave a\charge in the usual stereotyped form with reference to accomplice testimony.- There are quite a lot of cases which sustain the court’s charge as being correct and have been heretofore discussed. The writer has not always agreed with the majority opinion, but under those cases this charge is not error.

The judgment will therefore be affirmed.


text:
    MOORE v. STATE.
    (No. 4187.)
    (Court of Criminal Appeals of Texas.
    Oct. 18, 1916.)
    1. Ceiminal Law <§=>1090(7) — Denial oe Continuance — Bill oe Exceptions — Review.
    Denial of a continuance is not reviewable where no bill of exceptions was reserved to the ruling.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3204; Dec. Dig. <§=>1090(7).]
    2. Ceiminal Law <§=>1090(8) — Rulings on Evidence. — Bill oe Exceptions.
    The admission of alleged improper testimony is not reviewable where there is no bill of exceptions showing that the ruling was excepted to at the trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2816, 3204; Dec. Dig. <§=> 1090(8).] •
    Appeal from District Court, Lamar County ; Ben H. Denton, Judge.
    Della Moore was convicted of pursuing the occupation of selling intoxicating liquor in prohibition territory, and she appeals.
    Affirmed.

      C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of the offense of pursuing the occupation of selling intoxicating liquors in prohibition territory, and her punishment assessed at three years’ confinement in the state penitentiary.

In the motion for a new trial the appellant contends the evidence is insufficient to support the conviction. If the evidence of J. L. Madding and other witnesses introduced by the state is to be believed, they went to appellant’s place and purchased liquor from her on many different occasions.

No bill of exceptions was reserved to the action of the court in overruling the motion for a continuance, consequently we cannot review that ground of the motion for a new trial.

The other two grounds in the motion allege the district attorney was permitted to introduce improper testimony, specifying it. No bill of exceptions is in the record showing that it was excepted to during the trial of the case, and under such circumstances the matters are not presented in a way we are authorized to act thereon.

The judgment is affirmed.
      <S=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    ALLEN v. STATE.
    (No. 4173.)
    (Court of Criminal Appeals of Texas.
    Oct. 11, 1916.)
    Cbiminal Law <®=3406(4) — Evidence^-Confessions — Statements Befobe Gband Jury. . , .
    . Evidence as to accused’s testimony before the grand jury when subpoenaed and required to answer without being informed of her privilege against self-incrimination, which evidence tended to show accused guilty of the offense charged, is inadmissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 920-927; Dec. Dig. <§=> 406(4).]
    Appeal from Comanche County Court; J. H. McMillan, Judge.
    Ada Allen was convicted of crime, and she appeals.
    Reversed and remanded.
    A. B. Haworth, of Comanche, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

By complaint and information, filed March 18, 1916, appellant was charged in one count with being a common prostitute on or about May 1, 1914, and continuously thereafter; and in another, with unlawfully keeping, and being concerned in keeping a bawdyhouse and a house of prostitution, on or about the same time, and was convicted on both counts.

A considerable number of questions are raised. We have considered them all, though it is unnecessary to state or discuss them. The evidence was amply sufficient’ to sustain the conviction. While the bills as qualified, except one, present no reversible error, we would suggest that on another trial, the testimony of the liveryman that appellant hired and used his rigs twice, should not be admitted if nothing else is shown relative thereto than the mere fact that she hired and used these rigs.

Her bill No. 5, which is in every way full and proper, taken at the proper time and in the proper manner, shows, in substance, that the court, over her objections, permitted two of.the grand jurors to testify, in substance, that the grand jury had her brought before them, at the April term, 1915, on a subpoena, evidently then investigating these charges against her, and that while being interrogated before that body, she stated under oath that she had not lived a virtuous life, but that she had resolved to do better, and that she “was forced to appear before said grand jury, 'and to testify, and that she was not by anybody at said time or before advised that she did not have to tell anything or testify to anything that would incriminate herself, and that she was not warned or told that anything she might say or tell against herself could be used against her in a criminal prosecution against her for said offense or for any offense connected with or growing out of said acts or facts testified about, and that she was not warned that said testimony could be or might or would be used against her upon a prosecution involving her virtue and acts and conduct of that character,” etc., which was clearly requiring her to testify to incriminating testimony against her, without any warning whatever. Admission of this testimony was error, as has many times been held by this court, and requires a reversal. Simmons v. State, 184 S. W. 226, and authorities there cited.

The judgment is reversed, and the cause remanded.


text:
    Ex parte COOK.
    (No. 4166.)
    (Court of Criminal Appeals of Texas.
    Oct. 11, 1916.)
    Cbiminal Law <§=^1001 — Sentence — Deuay in Execution — Effect.
    Under Code Cr. Proc. 1911, arts. 869, 871, 867, 872, 875, and 877, as to jurisdiction, proceedings after conviction, and collection of fines in misdemeanor cases, where judgment is rendered for a fine against one accused of a misdemeanor in failing to work roads, but execution is delayed for a year, he may nevertheless be taken at any time before paying the judgment, on capias pro fine, though execution does not issue; the civil statute as to dormant judgments having no application.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 255A-2559; Dec. Dig. <®=o 1001.]
    Appeal from District Court, Shelby County ; W. C. Buford, Judge.
    Habeas corpus on the relation', of Rogers Cook. Prom an order remanding Mm to custody, relator appeals.
    Affirmed.
    Jas. S. Stephenson, of Center, for appellant.' C. C. Mc'Donald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

In January, 1911, relator was convicted in the justice court of Shelby county for failing to work on a public road, his punishment being assessed at a fine of $3 and costs. He was allowed to go at large for about a year and a half, when he was arrested and placed in jail under a capias pro fine to satisfy the judgment. On this showing the district judge under a writ of habeas corpus remanded relator to custody. Prom this he appeals, urging that the judgment assessing the fine of $3 and costs had become dormant, because not executed forthwith, and that, since the judgment had not been executed for a year and a half, he was entitled to his discharge from further liability. We are of opinion that this proposition is not well taken. In such cases this matter has been treated on the theory of escape. Among the early decisions is Luckey v. State, 14 Tex. 400. The opinion was by Judge Wheeler of the Supreme Court of Texas. The Luckey Case has been followed in subsequent cases. We might also refer to Ex parte, Dickerson, 30 Tex. App. 448, 17 S. W. 1076. The decision of the trial court, we think, is in accordance with the statute.

Article 869, C. C. P., provides that, when the judgment against a defendant is for a pecuniary fine and the costs of prosecution, he shall be discharged in one of three ways: Pirst, when the amount of such fine and costs have been fully paid; second, when the same have been remitted by the proper authority, and, third, when the defendant has remained in custody the length of time required by law to satisfy the amount of such judgment, as hereinafter provided. Article 871, C. C. P., provides that, when judgment has been rendered against a defendant for a pecuniary fine, if he is present, he shall be imprisoned in jail until discharged under the terms of article 867. Article 867 provides that, when the punishment assessed against a defendant is a pecuniary fine only, the judgment shall be that the state of Texas recover of the defendant the amount of such fine and all the costs of the prosecution, and that the defendant, if present, be committed to jail until such fine and costs are paid, or, if the defendant be not present, that a capias forthwith issue commanding the sheriff to arrest the defendant and commit him to jail until such fine and costs are paid, and, further, that execution may issue against the property of such defendant for the amount of such fine and costs. Article 872 is to the same effect, and provides in such cases if defendant is not present a capias shall forthwith issue for his arrest and the sheriff shall execute it by placing the defendant in jail until he is legally discharged. Article 875 provides that in such cases a capias may issue for the fine and costs, notwithstanding a capias may have issued for the defendant; and a capias may issue for the defendant, notwithstanding an execution has been issued against his property. When this execution has been collected and returned it shall operate as in civil cases. If under the execution the fine and costs have been collected, defendant shall be discharged; and article 877 also provides that, when a defendant has been committed to jail in default of the fine and costs adjudged against him, the further enforcement of such judgment shall be in accordance with the law of this state relating to county convicts. The civil statute with reference to dormant judgments does not apply. It is not necessary to issue the execution. It may be done in addition to the imprisonment under-the capias pro fine. The fact that execution may or may not issue does not prevent the incarceration of the party under capias pro fine. The judgment must be paid. This is not a civil, but a criminal, case. The judgment is not a civil debt, although it may be collected by execution, but still the capias pro fine can issue at any time before the judgment is paid.

Believing there is no merit in this question, the judgment of the district court is affirmed.
      <S=oJFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: .PRENDERGAST, P. J.

text:
    WOODS v. STATE.
    (No. 4158.)
    (Court of Criminal Appeals of Texas.
    Oct. 11, 1916.)
    1. Criminal Law <®=^77g(2) — Appeal—Harmless Erroe — Charge on Alibi.
    A cause should not be reversed for the refusal of a charge on alibi, unless, in the light of all the testimony, the evidence excludes the theory of defendant’s presence at the place of the crime.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1833; Dec. Dig. <g=»775(2)J
    2. Criminal Law <®=>775(2) — Trial—Refusal ,oe Charge on Alibi.
    In a prosecution for an aggravated assault upon a female, where the testimony of the officer was that he saw the assault committed in defendant’s room, and that immediately after he found only defendant and the woman in the room, and that no one had left until he reached the room, and both defendant and the woman testified that defendant was there at the time, both denying that defendant committed any assault, and the court, after defining the offense, required the jury to find beyond a reasonable doubt that defendant then and there committed an aggravated assault upon the woman, in addition to charging that defendant, is presumed to be innocent until his guilt is established by legal evidence beyond a reasonable doubt, the refusal of a charge on alibi was not reversible error, since a charge on alibi is not required if defendant’s theory is not inconsistent with the state’s theory that he was present at the commission of the offense.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1833; Dec. Dig. <S==>775(2).]

      Appeal from Wichita County Court; Harvey Harris, Judge.
    Levi Woods was convicted of an' aggravated assault and battery upon a female, and he appeals.
    Judgment affirmed.
    Martin & Oneal, of Wichita Palls, for appellant. John Davenport, Asst. Co. Atty., of Wichita Palls, and C. O. McDonald, Asst. Atty. Gen., for the State.
   .PRENDERGAST, P. J.

Appellant, an adult male, was convicted of an aggravated assault and battery upon a female. There is but one question in the case, and that is whether the couYt should have given a charge on alibi.

It seems now to be the settled rule “that, unless the testimony fails to exclude the idea of accused’s presence at the time of the commission of the offense, a charge upon the subject of alibi need not be given,” and “in no case should a cause be reversed for the refusal of such a charge, unless, in the light of all the testimony, the evidence excludes the theory of appellant’s presence at the place of the crime,” as said by this court through Judge Ramsey in Underwood v. State, 55 Tex. Cr. R. 605, 117 S. W. 809. The rule is thus again stated: A charge on alibi is not required if defendant’s theory is not inconsistent with the state’s theory that he was present at the commission of the offense. Underwood v. State, 55 Tex. Cr. R. 604, 117 S. W. 809; Parker v. State, 40 Tex. Cr. R. 121, 49 S. W. 80. And see Hernandez v. State, 64 Tex. Cr. R. 73, 141 S. W. 268; Myers v. State, 65 Tex. Cr. R. 448, 144 S. W. 1134.

The state’s theory and testimony was that appellant committed an assault and battery upon his paramour, Mattie Lee Williamson, at her room over the garage on the Perguson place at 12:30 o’clock at night. The state did not claim that the offense was committed at any other time or place. The testimony of the officer was that he saw the assault and battery committed at this time and place, and that immediately after he saw it he went up into this woman’s room and found only appellant and her therein, and no one had left there from the time he saw the assault and battery until he reached the room. Both appellant and the woman testified that he was there at that time, but both denied that he then or at any other time or place committed any assault or battery upon her. She further testified that some unknown “chufty or heavy built” negro man assaulted her at 10:40 that night, not in her room at all, but elsewhere in the back yard of the Perguson premises. She and appellant both further testified that appellant was not there at that time, 10:40, but he shows that he was elsewhere at that particular time. They both further swear that appellant came to her room about one hour later, and remained there continuously until the assault and battery testified to by the other state’s witness occurred.

The court in his charge, after properly defining the offense as alleged, required the jury to find and believe from the evidence beyond a reasonable doubt, that appellant, being an adult male, then and there committed an aggravated assault and battery upon said woman. In addition, he gave the usual charge that the defendant is presumed to be innocent until his guilt is established by legal and competent evidence beyond a reasonable doubt, and, if they had such doubt, to acquit him.

Under the facts of this case and the law, the court committed no reversible error in refusing to charge on alibi.

The judgment is affirmed.
      «SraoFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, J,

text:
    RANDLE v. STATE.
    (No. 4188.)
    (Court of Criminal Appeals of Texas.
    Oct. 18, 1916.)
    Criminal Law <®=10fi7(4) — Appeal—Record —Necessity of Statement of Pacts.
    In the absence of a statement of facts, materiality of alleged newly discovered evidence to warrant new trial is not reviewable.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2934, 2938, 2939; Dec. Dig. <S=>1097(4).]
    Appeal from San Augustine County Court; T. H. Downs, Judge.
    Bully Randle was convicted of selling intoxicating liquors in prohibition territory, and appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J,

Appellant was convicted of selling intoxicating liquors in prohibition territory.

In the motion for a new trial appellant claims to have discovered additional testimony. In the absence of a statement of facts, it is impossible for us to determine whether or not this alleged newly discovered testimony would be material. The trial judge evidently held it was not, in overruling the motion for a new trial, and we cannot say he erred with no record of the evidence heard on the trial, nor on the motion, before us.

The judgment is affirmed.


text:
    SPARKS v. STATE.
    (No. 4195.)
    (Court of Criminal Appeals of Texas.
    Oct 18, 1916.)
    Criminal Law @=31090(1) — Record — Statement of Pacts — Bill of Exceptions — Review.
    Where the record is without a statement of facts or bill of exceptions, no question is presented for review.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. § 2805; Dee. Dig. @=>1090(1).]

      Appeal from District Court, McLennan County; Richard I. Munroe, Judge.
    Henry Sparks was convicted of murder, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of murder, his punishment being assessed at 25 years’ confinement in the penitentiary.

The record is before us without a statement of facts or bill of exceptions. With the record in this condition, there is no, question presented for review.

The judgment is affirmed.
      @=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    WINTERS v. STATE.
    (No. 4172.)
    (Court of Criminal Appeals of Texas.
    Oct. 11, 1916.)
    1. Laeceny <@=1 — Receiving Stolen Goods <@=1 — Elements of Offense.
    One who receives property knowing it to have been stolen is guilty of receiving stolen property, and not of theft.
    [Ed. Note. — Eor other cases, see Larceny, Cent. Dig. § 1; Dec. Dig. <@=1; Receiving Stolen Goods, Cent. Dig. §§ 1-3; Dec. Dig. <@=1.
    Eor other definitions, see Words and Phrases, First and Second Series, Receiving Stolen Goods.]
    2. Laeceny <§=27 — Pabtles to Offenses— “Accomplice.”
    One having an agreement with another for the latter to steal property, the first not being present, and, when the theft was committed, he did nothing in pursuance of the common design or in aid of the person stealing, he was an accomplice to the crime.
    [Ed. Note. — Eor other cases, see Larceny, Cent. Dig. §§ 55-57; Dec. Dig. <@=>27.
    Eor other definitions, see Words and Phrases, First and Second Series, Accomplice.]
    3. Laeceny <@=40(4) — Vaeiance—Theft—Re-ceiving Stolen Goods.
    On an indictment charging theft of an automobile, defendant cannot be convicted if he merely received the car from another, in pursuance of an agreement with some other person to steal it and deliver it to him.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. § 110; Dec. Dig. <@=40(4).]
    Appeal from District Court, Wichita County; E. W. Nicholson, Judge.
    Marvin E. Winters was convicted of theft, and he appeals.
    Reversed, and cause remanded.
    J. M. Blankenship, of Wichita Falls, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of theft of an automobile and his punishment assessed at two years’ confinement in the state penitentiary.

H. C. Carpenter left his automobile in front of a moving picture show Tuesday night, and it was stolen between 9 and 10 o’clock that night. The automobile, subsequently identified as Mr. Carpenter’s automobile, was seen in appellant’s possession on Wednesday, and he was shown to be in possession all the remainder of the week. Sunday, Mr. Carpenter identified it as his car, and appellant was arrested.

Appellant, at the time he was arrested, gave an explanation of-his possession, and on the trial testified that he was at home Tuesday night when the automobile was stolen; that Wednesday afternoon, while he was at work at the sash and door factory, a man named J. C. Thomas brought the car to him and left it with him for repairs; that Thomas authorized him to sell the car for $100 and he might have all the excess. His father, mother, and sister gave testimony that, if true, rendered it impossible for appellant to have taken the car on Tuesday night.

The state introduced facts and circumstances to prove that the explanation was untrue, but introduced no proof tending to show that his alibi was false; however, if the verdict of the jury necessarily implied they found this to be untrue, we would not disturb the verdict. The jury, after considering the case some time, returned into court and propounded in writing the following question:

“If the jury believes the defendant knew that the automobile was stolen property, when he took possession of it on AVednesday March 29th, whether he had previous arrangement with the thief or not, does the law require that we find him guilty?”

It is thus seen that the jury found that appellant did not take the car from in front of the picture show on Tuesday night, but that he received it Wednesday, as testified to by him. The court in answer to this question instructed the jury that, if they believed he received the car on Wednesday from another, in pursuance of an agreement with some other person to steal it and deliver it to him, he would be guilty. This instruction, we think improper; for if he received the property, knowing it to have been stolen, he would be guilty of receiving stolen property and not theft. If he had an agreement with another for such other' person to go and steal the property, he not being present, and, at the time the theft was committed, he did nothing in pursuance of the common design or in aid of the person so stealing, he would be an accomplice to the crime, and could not be convicted under an indictment charging him with theft of the property. In this record there is no evidence of any previous understanding or agreement. Because of this error in the instruction given to the jury, authorizing them to convict appellant of theft under a state of facts which would only render him guilty of receiving stolen property, or as an accomplice to theft, it will be necessary to reverse the case. It is manifest that he was convicted after the question was propounded and answer given, under a mistaken idea that such a state of facts would render him guilty of the original taking, and when one is charged with one crime, and he is authorized to be convicted of that offense under a state of facts rendering him guilty of an entirely different crime, such a charge is fundamentally erroneous, for one can be convicted only for the crime for which he is being tried.

The judgment is reversed, and the cause remanded.
      <S=For other eases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes


text:
    Ex parte PARKER.
    (No. 4267.)
    (Court of Criminal Appeals of Texas.
    Oct. 18, 1916.)
    1. Habeas Cokpus &wkey;>118(9) — Appeal — Statement of Pacts — Appeoval by Judge.
    A statement of facts not approved by the trial judge cannot be considered on appeal in habeas corpus proceedings to procure release from custody on bail.
    [Ed. Note. — Por other cases, see Habeas Corpus, Cent. Dig. § 111; Dec. Dig. &wkey;>113(9).]
    2. Habeas Corpus <&wkey;113(ll) — Appeal — Opinion — Discussion of Evidence.
    On appeal from a judgment in habeas corpus proceedings denying release from custody on bail, the appellate court will not state or discuss the testimony.
    [Ed. Note. — Por other cases, see Habeas Corpus, Cent. Dig. § 113; Dee. Dig. &wkey;113(ll).]
    Appeal from District Court, Van Zandt County; R. M. Smith, Judge.
    Habeas corpus by R. P. Parker to secure his release from custody on bail. Prom a judgment denying a release, petitioner appeals.
    Affirmed.
    Wynne, Wynne & Gilmore, of Wills Point, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was held in custody by the sheriff under a proper warrant charging him with murder. An examining trial was held by the justice of the peace a few days after appellant killed deceased, and the justice, after hearing all the testimony, remanded him without bail. Thereupon he sued out a writ- of habeas corpus before the district judge of the district, who also heard all the testimony, and he denied him hail and ¡¡remanded him. Prom this action of the district judge, this appeal is prosecuted.

There is really no statement of facts in the record. What is here has been agreed to by the attorneys on both sides, but has in no way been approved by the trial judge. Strictly, therefore, it cannot be considered. Section 596, p. 304, 1 Branch’s An. P. C. However, before we discovered this, we had carefully read this statement, and even after discovering it we have again read and studied it. We have reached the conclusion that, even if the statement had been approved by the trial judge, we would not be justified in reversing the judgment of the district court denying him bail. As Is our rule, we do not state or discuss the testimony of appeals in this character of ease.

• The judgment is affirmed.


text:
    SMITH v. STATE.
    (No. 4170.)
    (Court of Criminal Appeals of Texas.
    Oct. 11, 1916.)
    1. Criminal Law <5&wkey;366(4) — Evidence—Res Gestje — Admissibility.
    In a prosecution for rape, statement of a witness that the prosecuting witness had come running to her house and was about to cry, and stated that accused “throwed me on the bed and got on top of me,” was admissible if brought within the rule governing res gestae statements.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. § 819; Dec. Dig. <&wkey;366(4).]
    2. Rape <&wkey;38(3), 48(1) — Evidence—Admissibility.
    The mother of prosecutrix could state that prosecutrix had made complaint upon which she had acted by sending for a doctor and that she had examined the clothes of prosecutrix and found blood on them.
    [Ed. Note. — Por other cases, see Rape, Cent. Dig. §§ 48, 67; Dec. Dig. &wkey;38(3), 48(1).]
    3. Rape <&wkey;48(2) — Evidence—Admissibility.
    Testimony of mother of prosecutrix, who was away from home, as to a detailed statement made by the prosecutrix to her at a later time, was inadmissible.
    [Ed. Note. — Por other cases, see Rape, Cent. Dig. § 68; Dec. Dig. ¡&wkey;>48(2).]
    4. Rape &wkey;>44 — Pleading—Issues.
    The state could prove that accused was married to another and different woman, since it was necessary to be shown that he was not married to the prosecuting witness.
    [Ed. Note. — Por other cases, see Rape, Cent. Dig. § 63; Dec. Dig. <&wkey;>44.]
    5. Rape <&wkey;38(l) — Pleading—Issues.
    The state was improperly allowed to prove that the wife of the accused had been sent to the penitentiary and that he had lived with his wife only three days after she had been released, his treatment of his wife not being an issue.
    [Ed. Note. — Por other cases, see Rape, Cent. Dig. §§ 48, 50; Dec. Dig. &wkey;>38(l).]
    6. Criminal Law <&wkey;374 — Evidence—Admissibility.
    Testimony that the accused had been convicted 16 years before, when he was 16 years of age, and remained in the penitentiary less than 2 years, should have been excluded.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. § 835; Dec. Dig. &wkey;o374J
    Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.
    Walker Smith was convicted of rape, and he appeals.
    Reversed and remanded.
    King & Seale, of Nacogdoches, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of rape, and his punishment assessed at ten years’ confinement in the state penitentiary.

Appellant asks for a reversal of the case on account of the court refusing to continue the case on account of the absence of the witness' John Pleasants. As qualified by tifie court, we would not feel authorized to reverse the case on that ground; but, as the case will be reversed on other grounds, this ground need not be discussed.

Golly Booker, a negro girl under 15 years of age, testified to appellant picking her up, laying her on the bed, and having an act of intercourse with her without her consent. She further testified to telling her aunt Fannie Durst about what had occurred, and the court permitted Fannie-Durst to testify, over appellant’s objection:

“Golly came running over to my house, and was just about to cry. She said: ‘Aunt Fannie, Mr. Walker come over to our house and throwed me down on the bed and got on top of me.’ ”

Appellant insists that, even if this was said under circumstances rendering it res gestee of the transaction, the testimony was inadmissible; he contending that in rape cases such res gestee testimony is not admissible. In this contention we do not agree with appellant. Res gestee is the event speaking, and, if the facts and circumstances are such on another trial as to bring this within the rule governing res gestee statements, the court will admit the testimony of the witness Fannie Durst. However, appellant is correct in his contention that the testimony of the mother is inadmissible. Mallie Green, the mother, was away from home cooking. The girl had seen her aunt and had finished cooking dinner before going to her mother. The statement to the mother would not be the event speaking, but a detailed report of what occurred some time before. Her mother could say that she came to her and made complaint, and she, acting on the complaint, sent Dr. Deal to see the girl; and she would also be permitted to testify that she examined her clothes and found blood on them; but she should not be permitted to testify what the girl told her, nor that she complained of Walker Smith, appellant. Judge Moore, in Pefferling v. State, 40 Tex. 492, stated the rule that has always prevailed in our Supreme Court and in this court in criminal eases:

“It has therefore been universally held that recent complaint by the person injured, her state and appearance, marks of violence, and the condition of her dress, shortly after the alleged occurrence, may be proved as original evidence. * * * It is, we think, well established, by reason as well as the great weight of authority, that proof of the particulars of the complaint, and the detailed statement of the alleged facts and circumstances connected with it, as was permitted in this case in the court below, cannot be admitted as original evidence to prove the truth of the statements testified to by the injured party, or to establish the charge made against the prisoner.”

There would have been no error in permitting the state to prove that appellant was married to another and different woman, as it was necessary to be shown that he was not married to the prosecuting witness. But the court should not have permitted the state to prove that appellant’s wife had been sent to the penitentiary, and that appellant had lived with his wife only three days after she had b.een released from the penitentiary. Whether he had treated his wife rightfully or wrongfully was not an issue in this case.

The state should not have been permitted to prove that appellant had been sent to the penitentiary some 16 years prior to the time of this trial, as he remained in the penitentiary less than 2 years and had been discharged from the penitentiary some 14 years prior to this trial. When it was ascertained that his conviction took place some 16 years ago, when he was only a 16 year old boy, appellant’s motion to exclude the testimony should have been sustained.

There are other matters complained of, but they will not likely arise on another trial.

The judgment is reversed, and the cause is remanded.
      «SxmEor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    DAVIS v. STATE.
    (No. 4255.)
    (Court of Criminal Appeals of Texas.
    Oct. 25, 1916.)
    Ceiminal Law &wkey;511(l) — Sueficienoy of Evidence — Testimony oar Accomplice.
    In a prosecution for burglarizing a railroad ■car under the control of a railroad agent without his consent, etc., evidence exclusive of the testimony of an accomplice Held insufficient to sustain a conviction.
    [Eel. Note. — For other cases, see Criminal Law, Cent. Dig. § 1128; Dee. Dig. <S&wkey;511(l)J
    Appeal from District Court, Anderson County; John S. Prince, Judge.
    Tom Davis was convicted of burglarizing a railroad car under the control of S. B. Mob-ley, without his consent, etc.
    Reversed and remanded.
    Kay & Seagler, of Palestine, for appellant. J. D. Pickett, of Houston, N. B. Morris, of Palestine, and C. C. McDonald, Asst.'Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was charged with burglarizing a railroad car under the control of S. B. Mobley, without his consent, etc. On his trial the jury awarded him 6 years’ confinement in the penitentiary.

The court charged in the ordinary stereotyped form. Charley Lee Thornton testified as a witness for the state that he had been convicted and sent to the penitentiary for burglary. The conviction occurred in Gray-son county on or about March 9, 1903. It is shown by bill of exceptions he was discharged on the 14th day of April, 1915, which would make 12 years and little over in the penitentiary on 4 years’ conviction. There seems to have been two convictions for 2 years each. There was a pardon extended the witness Charley Lee Thornton on the 8th day of June, 1916, in which it is recited, among other things, he was pardoned for the reason he was wanted as a witness in a case now pending in court, and it further recites that he was discharged from the penitentiary on the 14th day of April, 1915. Certified copies of the records of Grayson county show that Charley Lee Thornton was convicted on the 9th of March, 1903, in cause No. 8893 for burglary, and that on the 11th of March, 1903, sentence was duly passed on him, and that he was convicted in the district court on the 9th of March, 1903, in cause No. 8900 for the offense of theft of property over $50 in value, and sentence was passed on him for that on the 11th of March, 1903, for a term of 2 years, the sentence being, made cumulative, which entitled him to his discharge, if he served the full term, in 1907,, but the pardon recites and the facts seem to show that he was not discharged from the penitentiary until April 14, 1915. He was pardoned by the Governor to' enable him to testify in this case. Thornton testified that he and Tom Davis, appellant, got goods out of a box car in the south end of the International & Great Northern Railroad yards at Palestine; that he did not know Mr. Mobley, the station agent. He describes the manner of the burglary, and states that he and appellant took goods out of the ear and hid them; that appellant broke the seal, and witness stayed' outside and received the goods out pf the car. The car was sealed and appellant broke the seal. Witness says he helped pull the car door open, and appellant went in, and he stayed out to watch; that appellant would hand the goods out, and he would take them. This was about 1 or 2 o’clock at night. Appellant, as he handed them out, said:

“Here are some shoes, few other things, here take them; here is some more stuff”

—and after they finished they closed the door, and he says Davis in closing the door put the seal on it again; that they went down the track and left everything and did not carry anything with them; they went in the yard and got some sacks and went back and got the goods and carried them out. In other words, they went down the railroad track and got some sacks, returned, put the stolen goods in the sacks, and carried them off some distance, secreted them by digging a hole in the ground and covering it up; that they buried the boxes in a little culvert in a branch. He says:

“I told Sheriff Guinn where I buried these boxes afterwards; I wouldn’t tell him at first. We had put the stuff in sacks; we carried 'the stuff on down there in this branch, it was quite a piece from where we robbed the car, down on the west end.”

Mr. Mobley, railroad agent,- testified that he had possession 'of all freight cars standing in the yards, and had the right to direct the loading and unloading of the cars. Afjfer testifying to his want of consent to breaking and entering of the car, he says:

“If any goods were taken from a box Gar, if it was broke and entered by either Tom Davis or Charley Thornton, either or both, it whs done without my consent. I could not tell yóu how many ears have been broken open since in February or March. I don’t know. I don’t know the negro Lee Thornton. He did not work for me over there any time that I know of. I could not say personally whether there was a box car broke open on the 4th day of March or not. I don’t know whether there was a box car broke open about that time or not, of my own personal knowledge, I don’t know. I couldn’t say that Tom Davis or Lee Thornton took any goods from any of those cars or not. We missed a good deal of goods. I don’t know what particular car you are talking about, I didn’t testify as to any particular car. There has been all kinds of goods recovered by the sheriff’s department. I don’t know exactly, without going back to the records, what was recovered. I don’t know of any goods at all that Lee Thornton or Tom Davis took out of that car. I don’t know of any ear that was broke open in March.”

He further testified:

“I did not of my own knowledge know of a box car being broke open about the 4th day of March. I saw some of these goods after they were turned over to the railroad company by the sheriff. I don’t know whether they were the goods Tom Davis was charged with taking or not. I understand they were the goods that were found buried out here; those goods were never in my possession before that I know of, personally. I don’t know that they were ever in any box car. A part of them goods were shipped to Ft. Worth at the order of our claim department, and part of them, I think, were shipped to owners. No one ever claimed the goods that were buried out there that I know of, not of my knowledge. I am the agent here. Of my own personal knowledge, I had no knowledge of a box car being broke open on or about the 4th day of March. I don’t have any recollection of anybody reporting that to me. I don’t know, though, that there was any car out there that was ever broke open. I don’t know anything about that. There are plenty stores that handle underwear and socks, etc., and all of the goods that were found out there; there are plenty stores in Palestine and adjoining, all of these towns handle such goods as tho.se.”

Thornton, on further examination, says he went to the penitentiary from Dallas for selling whisky, bootlegging; that he had never been to any other penitentiary; that he had been convicted for fighting and such as that, and for gambling; that he had been in Palestine when he burglarized the railroad car about two weeks; that he had been out of the penitentiary about two weeks altogether. He says:

“I didn’t burglarize the car; I helped carry the stuff away. When I was first arrested I claimed I didn’t do it. Mr. Guinn did not tell me that he would go out and search my mother’s house.”

Thornton testified that he and appellant burglarized the car and secreted the goods taken from it, and then resealed the car; that on the night afterwards appellant borrowed a buggy from a friend, and they went down the railroad in the neighborhood of where these stolen goods had been secreted. In the meantime these goods had been found and reported to the officers. The officers show that appellant and Thornton were down in that neighborhood that night in a buggy. They did not get any goods, and did not tell where the goods were, and the officers arrested them. The defendant claimed he was there to meet some girls at the instance of Thornton, and that he borrowed the buggy for him and Thornton to go down there and meet these girls. Appellant denied the whole matter, claiming to have had nothing to do with it, and had no interest in the matter, and did not burglarize the car.

When the officers examined or searched the house of the witness Thornton, or his mother’s house where he lived, they found a lot of goods which Thornton says was a part of the goods they had taken out of the car the night they burglarized it; they having hid the balance of it. They examined the house where appellant lived and found nothing. Appellant had on a pair of black socks which Thornton claimed was a part of the goods, and the officers said were the same character of goods. This was all of the goods found on appellant. Thornton had on a pair of white socks which resembled the goods that were found.

The main question in the case is the sufficiency of the evidence. Omitting the testimony of the witness Charley Lee Thornton, there is no evidence that a box car was opened on the 4th of March. No claim has been put in to the company for these goods, as we understand the record. Mobley, the agent states no one ever claimed the goods that were buried out there within his knowledge. Omitting the testimony of Thornton, the accomplice, who swore he was an accomplice, if there is any fact or evidence that the box car was opened on the 4th of March, it has escaped our attention. In order to convict in a case of this character, it is necessary that a burglary be committed, and committed as charged in the indictment. No witness testified to the breaking of the car except Thornton. The burglary of the car or the breaking of the car cannot be proved by the witness Thornton so as to hold appellant responsible. He must be corroborated as to the fact that the car was burglarized. No witness undertook to show or swear that the car was burglarized at that time and place. The goods were not identified; nobody claimed them, and if it be conceded that the goods were stolen, that is not sufficient. It must be shown by testimony tending to connect the defendant with the burglary beyond the testimony of Thornton, and that the burglary occurred. It might be accepted under this record and the facts and circumstances that if the amount of goods taken from the car as indicated here were taken from it, somebody who had shipped these goods or was entitled to receive them would have made some claim for their loss. The agent Mobley testified that no such claim was made. Thornton only testified the car was broken. This matter was discussed and settled by Judge Hurt in the case of Welden v. State, 10 Tex. App. 400. Thornton’s evidence is not sufficient to show that appellant was there. The state does not undertake to corroborate him that the car was broken or defendant was present when the car was broken. It does not undertake to corroborate him that the goods mentioned came out of the car.

We are cited to some cases; one of them is Martin v. State, 21 Tex. App. 1, 17 S. W. 430. It will be noticed upon an inspection of that case, which perhaps is the strongest one in favor of the state, the state shows conclusively and independently of the accomplice that a burglarly was committed; that a store was entered, burglarized, and an iron safe taken out and money taken from it. The state did not rely upon the accomplice to prove the burglary; that was proved by unquestioned testimony independent of the accomplice. In this ease there is no attempt to corroborate the accomplice as to the burglary. So the difference between the two cases is easily noticeable. In the Martin Case a store was burglarized, an iron safe taken out, entered from the back of the safe, and I the money taken from it. The accomplice need not have testified, because the state in that case made ample proof. The accomplice was really worth nothing in that case except to furnish the means by which other testimony could connect the defendant with it. In this ease there is no corroboration of the accomplice at all, or that the car was ever burglarized by anybody. This testimony, in our judgment, is wholly insufficient to show that Davis, appellant, was connected with the burglary of the car, if Thornton’s testimony is omitted from the record. Appellant was not found in possession of any of the goods at any time or anywhere, unless it was a pair of socks. Thornton admitted carrying a lot of the stolen goods to his mother’s house, where the sheriff found them. If appellant and Thornton went down in the neighborhood where the goods were secreted on the night after the alleged burglary, they did not have possession of the goods. The sheriff arrested them before they got possession of the goods, if they were there for that purpose, and therefore he was never in possession of any of the goods, unless it be the pair of black socks mentioned, and they were not identified outside of the testimony of the accomplice as having come from that car. This did not prove the car was burglarized, or tend to corroborate Thornton that the car was burglarized.

Believing this testimony is not sufficient, the judgment is reversed, and the cause is remanded.
      ©ssEor other eases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes-


text:
    LONGORIA v. STATE.
    (No. 4192.)
    (Court of Criminal Appeals of Texas.
    Oct. 18, 1916.)
    1. Cbimotai, Law <&wkey;878(2) — General Veb-bict — Application by Court.
    Where, on a trial under an indictment, charging in one count cattle theft, and in another count receiving the cattle, knowing them to have been stolen, the court submitted both counts for a finding in charges to which there was no objection, and accused did not seek to have the state elect on which count a conviction would be sought, and the jury found accused guilty as charged in the indictment, and the evidence amply sustained a conviction for theft the court properly applied the verdict to the count charging theft.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Di'g. § 2099; Dec. Dig. &wkey;>878(2_).]
    2. Criminal Law <&wkey;1105(l) — Record — Stenographer’s Report.
    The court on appeal in a criminal case is restricted to a consideration of the facts agreed to and approved by the trial judge and the bill of exceptions in the record and acted on by the judge, and it cannot consider the stenographer’s report of the case not approved by the trial judge, nor agreed to by the attorneys.
    [E'd. Note. — For other cases, see Criminal Law, Cent. Dig. § 2887; Dec. Dig. <§=»1105(1).]
    3. Criminal Law ¡&wkey;1037(2) — Trial — Misconduct oe Prosecuting Attorney — Record-Review.
    The action of the trial court in permitting the district attorney to make a statement in arguing before the judge on the admissibility of the testimony is not reviewable where accused merely objected to the statement, and did not request the court to instruct the jury not to consider it.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1691, 2645; Dec. Dig. <&wkey; 1037(2).]
    4. Criminal Law <&wkey;369(2) — Evidence oe Other Oeeenses — Admissibility.
    Where circumstantial evidence is relied on to prove guilt, evidence of another distinct offense connecting, or tending to connect, accused with the offense charged, or tending to defeat his defensive theory is admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 822, 823; Dee. Dig. <&wkey;> 369(2).]
    5. Criminal Law <&wkey;1169(5) — Harmless Error-Rulings on Evidence.
    On trial for cattle theft, the error, if any, in admitting evidence of the theft by accused of other cattle was cured by the court withdrawing the evidence and directing the jury not to consider it.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3141; Dec. Dig. &wkey;>1169(5).]
    6. Criminal Law <&wkey;1092(ll) — Appeal—Bill oe Exceptions.
    A bill of exceptions not approved by the trial judge cannot be considered on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2837, 2841, 2843; Dec. Dig. &wkey;1092(ll).]
    7. Witnesses <&wkey;379(l) — Impeachment — Proof oe Contradictory Statements.
    A witness may be impeached on laying the proper predicate by proving statements by him in conflict with his testimony.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1209, 1247; Dec. Dig. &wkey;>379(l).]
    Appeal from District Court, Brooks County ; V. W. Taylor, Judge.
    Tristan Longoria was convicted of cattle theft, and he appeals.
    Affirmed.
    See, also, 188 S. W. 987.
    J. W. Wilson, of Falfurrias, and Pope & Sutherland, of Corpus Christi, for appellant. C. C. McDonald, Asst. Atty.. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of the theft of 37 head of cattle, and the lowest punishment was assessed.

The indictment was in two distinct counts. The first was for the theft of said cattle, and the second was for receiving them, knowing them to have been stolen, etc. Each count follows the approved forms and the statute, and each was clearly sufficient. Appellant made a motion to quash the indictment on the sole ground that neither count charged any offense under the law. The court correctly overruled his motion to quash.

We have carefully read and studied the testimony. His conviction was based upon circumstantial testimony alone. In our opinion, it was amply sufficient to sustain the conviction. We. see no necessity of reciting it.

The court in his charge submitted both counts for a finding in proper and correct charges, to which there was no objection. Appellant in no way sought to have the state to elect upon which count a conviction was sought. The verdict of the jury found appellant guilty “as charged in the indictment.” The court applied it to the theft count. At the time, appellant in no way either objected to the verdict or the application of it, as stated; but two days thereafter, he, by motion, sought to arrest the judgment, which was contested by the state, claiming that because the verdict itself did not specify under which count they found him guilty, it was therefore ‘Impossible in fact and in law, and means nothing, and is void”; which the court overruled.

In our opinion, the evidence was insufficient to sustain a conviction for receiving thé stolen property knowing it to have been stolen, but, as stated, it would amply sustain the theft by appellant of the property. The doctrine, therefore, of applying the verdict by the court, which was done, to that count of the indictment which the evidence sustained, was clearly correct. Section 902, White’s An. O. O. P., where Judge White collates and cites a large number of cases from this court and the Supreme Court. We deem it unnecessary to copy here the said cases by Judge White and many others later to the same effect. The doctrine and application of it is too clear to need discussion. The two counts were for the same transaction or offense. Such pleading is not only expressly authorized by our statute (article 481, C. C. P.), but has always been commended by this court (sections 402, 403, White’s An. C. O. P.).

It seems appellant’s attorneys have the idea that this court can refer to and consider the stenographer’s report of the case, for they frequently refer to it in their brief, and we find such document on file here with the papers of this cause. This is a mistake. This document in no way bears the approval of the trial judge, nor is it agreed to by the attorneys for either side. We are restricted to a consideration of the statement of facts agreed to and approved by the trial judge and the bills of exceptions as contained in the record and acted upon by the judge.

Appellant’s first bill shows that while Mc-Murray, a state’s witness, was upon the stand, he testified, in answer to the district attorney’s questions, that he had seen on appellant's ranch another bunch of cattle with the old brand of the owner Jones burned into that of appellant other than a part of which had been driven home, and that he objected to this. The court, in passing upon this bill, stated that he never overruled appellant’s objections to this testimony. It seems that he made no ruling at all at the time.

His next bill is to the continued testimony of this same witness along the same line, which was to the effect that he did not remember the exact day on which he saw these additional cattle on appellant’s ranch, and that in addition to the said 24 head he had seen others with said burned brand on the owner’s ranch. That they did not rope any of these additional cattle, but did some of the 24 head, and he was asked when he saw them on appellant’s ranch, and he replied that he did not remember the exact date. The court refused this bill in effect by stating that appellant made no objection.

By his next bill, he shows that the district attorney, in arguing before the judge the admissibility of this testimony, to which he objected, in effect stated that it was material and had a good deal to do with the case, and that by the questions he was seeking to fix the date. The court, in passing upon this bill, states that appellant made the objections to the question and statement of the district attorney, but that no request was made to instruct the jury not to consider said statement by the district attorney.

By the next bill he shows that the answers of the witness to the district attorney’s further questions developed the fact that it was about 15 or 20 days after appellant was arrested on June 1st in this case before he saw these other cattle inquired about. Thereupon, whether of his own motion or upon that of the district attorney is not disclosed, but at any rate, the court withdrew all that testimony, and instructed the jury not to consider it for any purpose whatever.

In order that the question may be, better understood, we briefly state what the evidence disclosed along this line. On or about January 20, 1915, appellant had 87 head of cattle penned near his house on his ranch. The cattle consisted of one young calf, another a little older, other cattle one and two years old, and then some cows still older, and three bulls. That these cattle belonged to the alleged owner Jones and were stolen from him. That. on January 20th appellant sold and delivered said 37 head to Mr. Lane. The cattle, except the two calves, were originally branded in Jones’ brand and marked in his mark. His brand was YI. That just recently before appellant sold and delivered them to Lane, the brand had been changed by burning Jones’ brand into that of appellant. The burning consisted in attempting to run a bar from the right-hand top of the V to the bottom of the I, thus mating a W and a J lying flat above it; this JW brand being appellant’s. That when these burned brands were discovered some time after the said sale to Lane by appellant, Jones and some of his employés on his ranch-from which the cattle had been stolen, with others, went to Lane’s and clearly identified 24 of the 37 head at that time as the stolen property of Jones, and thereupon the 24 head were delivered to him, and he had them driven to his ranch home whence they had been, stolen. Later, shortly after-wards, Jones procured from Lane eight additional head of these 37 head of stolen cattle. It was cattle in addition to these 37 head that the district attorney was by inquiries of this witness attempting to show were on appellant’s ranch with Jones’ brand burned and changed into that of appellant. Even though, by further probing, it was ascertained that it was a few months after the sale of the 37 head to Lane that the witness saw these additional cattle on appellant’s ranch with the brands so changed, we are inclined to believe that such testimony was admissible; that the time he saw them there was not too remote to permit its proper admission.

As stated, the testimony in this case was wholly circumstantial. Appellant’s defense was that the cattle he sold Lane were cattle that he and his father had raised and at no time were Jones’ cattle, and that those delivered to Lane had not had the brands burned on them as established by the state’s testimony. The authorities are to the effect that when it is sought to show guilt of an accused by circumstantial evidence, if the proof of another offense connects, or tends to connect, him with the alleged offense for which he is being tried, or when it tends to defeat his defensive theory, such evidence is admissible, although it tends to prove another distinct crime. Section 2347, 2 Branch’s An. R. O. But whether the evidence in this instance was admissible or not, when it developed that it was some months after said sale by appellant to Lane, of said 37 head of cattle, the court excluded it and peremptorily charged the jury, as stated, not to consider it for any purpose. This cured any error, if there was error, in its admission. Kinney Miller v. State, 185 S. W. 29, and authorities there cited.

Appellant’s fifth bill is not approved by the judge — hence cannot be considered; but even if .it had been approved, it would present no error, for it and the next bill show that he complained because the court, after laying the proper predicate as to one of appellant’s witnesses, permitted the state to impeach him by proving statements by him the reverse of what he testified on this trial. This is always permissible. The court in his charge explained to the jury that it was admitted solely for the purpose of impeaching, if it did, the defendant’s witness, and that they could consider it for no other purpose whatever.

The judgment is affirmed.
      <&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    DAVIS v. STATE.
    (No. 4210.)
    (Court of Criminal Appeals of Texas.
    Oct. 18, 1916.)
    1. Criminal Law <@=^1144(5) — Appeal — Review — Presumptions—Incomplete Record.
    Where after conviction and motion for new trial because accused was under 17 no statement of facts heard on the trial nor evidence heard on motion for new trial accompanied the record, it was presumed that the trial court heard evidence and found, either that accused was more than 18 years of age, or that he was of such Character that his case should not be sent to the juvenile or delinquent court for trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§-2738, 2742, 2901, 3020; Dec. Dig. <§=^1144(5).]
    2. Infants <@=318 — Juvenile Offendeks — Prosecution — Jurisdiction.
    Under various acts of the Legislature in regard to delinquent children, a trial judge, when the question of accused’s youth is presented, has authority to hear evidence and determine whether the interest of accused and society require he be tried by the delinquent court or as a felon.
    [Ed. Note. — For other cases, see Infants, Cent. Dig. § 18; Dec. Dig. <@=>18.]
    Appeal from Criminal District Court, Dallas County; W. L. Crawford, Jr., Judge.
    Andrew Davis was convicted of burglary, and appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was charged by indictment with the offense of burglary. When the case was called for trial appellant entered a plea .of guilty, and his punishment was assessed at two years’ confinement in the state penitentiary. This occurred May 16, 1916, and judgment was entered on that day. On the 28th day of June thereafter a motion for new trial was filed, sworn to by counsel for appellant, alleging that appellant, was under 17 years of age, in fact was only 14 years of age on the 21st day of last January. The court entertained the motion on June 29th, and overruled it, from which order appellant prosecutes this appeal.

No statement of the facts heard on the trial of the case,- nor the evidence heard on the motion for new trial, acconqpanies the record before us. Therefore we would be authorized to conclude that the court heard evidence and either found that appellant was more than 18 years of age, or that he was of that character of person who should not have his case sent to the juvenile or delinquent court for trial, but should be treated as a felon. That lie had a right to so adjudge and hold was decided by this court in the cash of McCallen v. State, 174 S. W. 612. Judge Prendergast in that opinion reviews at length all the acts of the Legislature in regard to delinquent children, and held when that question was presented to a trial, judge he would have the authority to hear evidence, and, after doing so, to determine whether or not the interest of the person charged and society required that his case be sent to the delinquent court' for trial, or that he be tried as a felon. The opinion in the case is decisive of the question here presented, and we do not deem it necessary to again review the provisions of the statute.

After he had perfected his appeal, appellant on- October 3d presented to this court an original application for a writ of habeas corpus, alleging the same grounds as those contained in the motion for a new trial in the district court. The application was filed with the papers in the case on appeal, and as it presents no other question than that entertained and passed on by the district court on the motion for a new trial, we do not think it should be granted.

The judgment is affirmed.
      <g^>For other cases see same topic and KEY -NUMBER in all Key-Numbered Digests and Indexes


text:
    DAVIS v. STATE.
    (No. 4211.)
    (Court of Criminal Appeals of Texas.
    Oct. 18, 1916.)
    Appeal from Criminal District Court, Dallas County; W. L. Crawford, Jr., Judge.
    Andrew Davis was convicted of burglary, and appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of burglary, and assessed the lowest punishment. There is no bill of exceptions nor

statement of facts in the record, and no question raised that can be considered in their absence.

The judgment is affirmed.


text:
    GOMEZ v. STATE.
    (No. 4184.)
    (Court of Criminal Appeals of Texas.
    Oct. 18, 1916.)
    1. Criminal Law <@=>956(2) — New Trial — Necessity for Affidavit — Newly Discovered Evidence.
    A motion for new trial on the ground of newly discovered evidence, not supported by affidavit, cannot be considered.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 2396; Dec. Dig. <§==>956(2).]
    2. Criminal Law <@=>1159(3) — Appeal — Verdict — Conflicting Evidence.
    Where the state’s evidence was clear and positive as to defendant’s guilt, though contradicted by defendant’s testimony, a verdict of guilty cannot be disturbed on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3076; Dee. Dig. <§=>1159(3).]
    Appeal from District Court, Fayette County; Frank S. Roberts, Judge. .
    Nicholas Gomez was convicted of murder and sentenced to 25 years’ imprisonment, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of murder; his punishment being assessed at 25 years’ confinement in the penitentiary.

No bills of exception were reserved, and no objection to the charge was presented. There is set up in the motion for a new trial the statement that there was newly discovered evidence. There is nothing to support this statement in the way of an affidavit. It is therefore not discussed.

The only other matter pertains to the sufficiency of the evidence. That for the state is clear and positive that appellant shot and killed deceased, another Mexican. Appellant’s contention was that deceased was shot by another party. To sustain this he introduced evidence. The jury believed the state’s witnesses, and we would not feel authorized to disturb the finding of the jury.

The judgment is affirmed.


text:
    DAVIDSON v. STATE.
    (No. 4183.)
    (Court of Criminal Appeals of Texas.
    Oct. 18, 1916.)
    Criminal Law <@=1090(16) — Appeal—Record —Sufficiency.
    Questions presented in motion for new trial held not reviewable, in the absence of a statement of facts or bill of exceptions.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2822, 2948, 3204; Dec. Dig. <@=>1090(16).]
    Appeal from District Court, Grayson County ; M. H. Garnett, Judge.
    Bill Davidson was convicted of burglary, and appeals.
    Affirmed.'
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

No statement of facts or bill of exceptions accompanies this record. Consequently there is no question presented in the motion for a new trial we can review.

The judgment, sentencing appellant to a five-year term in the penitentiary for burglary, is therefore affirmed.