author: ECARPER, J.

text:
    McCLARY v. STATE.
    (Court of Criminal Appeals of Texas.
    April 1, 1914.)
    1. Criminal Law (§ 380) — Evidence—Character of Accused.
    In a prosecution of a woman for arson, evidence was not admissible that witness, who roomed at accused’s house at the time of the fire, saw accused and a man together in the house, and knew that they roomed together.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 843, 845; Dee. Dig. § 380.]
    2. Arson (§ 2S) — Admission of Evidence.
    Evidence was not admissible, in a prosecution for burning a house in which accused lived, that witness saw accused with a certain dress on which she made since the fire, unless it were shown that the particular dress was included by accused in her statement of loss from the fire.
    [Ed. Note. — For other cases, see Arson, Cent. Dig. §§ 56-61, 63; Dec. Dig. § 28.]
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    Minnie McClary was convicted of arson, and she appeals.
    Reversed and remanded.
    Pierson, House & Pierson and M. M. Brooks, all of Dallas, for appellant. 'C. E. Lane, Asst. Atty. Gen., for the State.

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

   ECARPER, J.

Appellant was convicted of arson, and her punishment assessed at five years’ confinement in the state penitentiary.

The appellant earnestly insists that the evidence will not support the conviction. We have read the record carefully, and, while the state’s ease depends wholly upon circumstantial evidence, yet we would not feel authorized to disturb the verdict on this ground of the motion.

However, in a bill of exceptions it is shown that the assistant county attorney, in his closing argument, said: “The fire records of the city of Dallas show that there is an average of 92 fires a month, and that 90 per cent, of this number are illegal burnings, 75 per cent, of that number are burned by the hands of women, and the only way to prevent it or stop it is to convict this woman. The question is: Have you the nerve to do it?” Attached to the bill is a statement of Mr. Curtis, who made the argument, and he says: “While I cannot state that I used the exact language set out in the bill, nor do I now remember just what language I did use, I said something about the number of fires in Dallas, and the great majority were set by women, when Ellis P. House, attorney for the defendant, excepted to such remarks. There toas no testimony to support such remarles, and, the court having returned to the bench, I said, ‘Tour honor, I have gone out of the record, and I am sorry of it, and will not do -it again — I beg counsel’s pardon.’ The court said, ‘Go ahead with your argument.’ ” The court shows he was temporarily off the bench, but, when the controversy arose, he resumed his place, when the assistant county attorney made the apology as stated by him. Would this apology remove the evil of such inflammatory remarks? As said by the assistant county attorney, there was no basis for such remarks in the testimony. There was no evidence as to the number of fires occurring in Dallas, no evidence as to the proportion that was illegal, and no evidence as to the per cent, of illegal fires set by women. But, if all this were true, this would be no reason why this defendant should be convicted, unless she was guilty of arson herself. Taking the apology into consideration, this alone might not present, reversible error, as the record is presented to us; but we do hope that prosecuting officers will cease injecting new testimony into the case in their argument, and will discuss the evidence adduced and the legitimate deductions flowing therefrom. We know how, in the heat of debate, one is prone to forget himself, and we have looked with some leniency on such matters, where one is promptly stopped upon objections being made, and the jury is instructed not to consider it; but in this instance no such instructions were given orally or otherwise, the court perhaps thinking the apology of the county attorney sufficient.

In another 'bill it is shown that Mrs. Slaughter testified: “I have known of Mrs. McClary for about two years. I roomed with her about a month or five weeks. I moved there about the last of February, and I think I moved away somewhere about the 1st of April, I think, the best I can remember. I was not there during the fire; I moved away about the 1st of April. They had a fire, I believe, in July. I roomed upstairs, too. I had my two daughters there. I was a widow, but am not now. Mr. Mills’ room was right next to mine, upstairs. I guess they roomed together; I just suppose — I know they did. I saw them together. I heard her go to his room at night. I don’t know a thing on earth about the fire. That’s all I know about the case.” It is true that Mr. Mills was also indicted, charged with this offense, and the court submits the law of principals — that all persons present who participate in the offense would be guilty, and the record would suggest that, if one was guilty of the offense, perhaps the other was also guilty, as it is shown they left the house a short time before the fire, yet we do not understand that, if they were- guilty of a criminal liaison in March prior to the fire, this would tend to show that Mrs. McClary was guilty of arson in July. She may be an immoral woman, as Mrs. Slaughter’s testimony would suggest; but this would not be an admissible circumstance to show she was guilty of arson when she did not testify in the case.

In another bill it is shown that Mrs. Wright testified to seeing Mrs. McClary with a certain messaline dress on that she made since the fire. Appellant objected to this testimony, on the ground that there was no testimony that Mrs. McClary had testified in her examination by the insurance adjuster that this dress was burned, or that she rendered it in her claim for damages made to the insurance company. The record is not very clear on this issue, and on another trial, if it is not shown that this was one of the dresses which she included in her loss statement, this part of Mrs. Wright’s testimony should not be admitted.

In another bill it is shown that, when the prosecuting attorney offered certain documentary evidence — proof of loss, and testimony adduced thereon by the adjuster, etc. —the defendant’s attorney objected thereto on various grounds. The court said, “Tou have got to establish that better than this,” when the prosecuting officer said, “I will establish it by Mr. Mills;” and on this promise the court admitted the testimony, yet the record discloses Mr. Mills was not called as a witness nor any one else to prove these facts. This documentary evidence is all admissible if properly proven up, and we will comment no further, as on another trial doubtless this proof will be made.

There are other matters complained of in the record especially alleging newly discovered testimony ; but we do not deem it necessary to discuss it, for it will not be newly discovered on another trial.

On account of the above matters, the judgment is reversed, and the cause remanded.


source: Caselaw Access Project

author: DAVIDSON, J.

license: Public Domain

text:
    COOK v. STATE.
    (Court of Criminal Appeals of Texas.
    March 11, 1914.
    Rehearing Denied April 15, 1914.)
    1. CbimiNal Daw (§ 978) — Suspension op Sentence — Statutory Provisions.
    .The statute authoi-izing suspension of sentence on recommendation of the - jury is constitutional.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2484, 2485, 2487; Dee. Dig. § 978.]

      2. CRIMINAL Law (§ 982) — Suspension of Sentence — Power of Court.
    Under the statute relative to suspending sentence, the question of suspending sentence is for the jury in determining the question of punishment, and, where the jury fails or refuses to suspend sentence, it cannot be suspended, though they find that accused has not previously violated any law.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2500, 2501; Dec. Dig. 982.]
    Appeal from District Court, Montague County; R. H. Buck, Judge.
    Robert Cook was convicted of manslaughter, and he appeals.
    Affirmed.
    W. E. Benson, of Sunset, H. E. Weldon, of Bowie, and J. M. Chambers, of Ft. Worth, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, J.

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

The question of suspension of sentence was passed on under submission by the court to the jury. The jury found that appellant had not heretofore violated the law, etc., but failed or refused to suspend his sentence. That is the only question presented for review. It may be said it is presented from two viewpoints: First, that the law is unconstitutional; and, second, that, if not, then the law should be so construed that, in all cases where the jury find the defendant has not heretofore violated any laws of his country, the suspension will' follow as a matter of law. The constitutionality of the law has been passed on in Baker v. State, 158 S. W. 998, in an opinion by Judge Harper, and that opinion has been followed. In Roberts v. State, 158 S. W. 1003, in an opinion by Judge Prendergast, it was held that it was only within the province of the jury to say whether or not the sentence should be suspended; in other words, it was a matter to be determined as a part of the punishment or suspension of punishment to be ascertained and determined only by the jury. That case has been followed in other cases. On the two questions, see Baker v. State, supra; Roberts v. State, supra; Potter v. State, 159 S. W. 846; Monroe v. State, 157 S. W. 155. It is deemed unnecessary to review the questions.

The judgment is affirmed.


author: HARPER, J.

text:
    SMITH v. STATE.
    (Court of Criminal Appeals of Texas.
    March 25, 1914.
    Rehearing Denied April 15, 1914.)
    1. Witnesses (§ 395) — Imfeachment—Cor-roboration.
    Where a witness for the state was impeached by proof that he had made statements contradictory to his testimony, the state could show that the witness had made statements consistent with his testimony prior to the alleged contradictory statements.
    [Ed. Note. — For other cases, see Witnesses. Cent. Dig. § 1260; Dec. Dig. § 395.]
    2. Criminal Law (§ 1170) — Harmless Error —Erroneous Exclusion of Evidence.
    Where, on a trial for statutory rape, pros-ecutrix testified that she informed accused of her pregnancy, and asked Mm to marry her, and that he refused, and accused testified that up to-a designated time he had not determined that he would marry her, the exclusion of evidence that prior to that time he had informed his father of his intention to marry prosecutrix, and had made arrangements so to do, offered to explain his association with prosecutrix, was not prejudicial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3145-3153; Dec. Dig. §. 1170.]
    3. Criminal Law (§ 1090) — Rulings on Application for Discontinuance — Bill of Exceptions.
    Denial of a continuance is not reviewable, in the absence of a bill of exceptions.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2S22, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    4. Criminal Law (§ 1159) — Verdict—Conclusiveness.
    A verdict on conflicting evidence, and supported by evidence, if believed, will not be disturbed on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3074-30S3; Dec. Dig. § 1159.]
    Appeal from District Court, Collin. County; F. E. Wilcox, Special Judge.
    Otis Smith was convicted of statutory rape, and he appeals.
    Affirmed.
    Wallace I-Iughston, of McKinney, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was convicted in the district court of Collin county under an indictment charging him with the rape of Birdie May Walker, a girl under the age of 15 years, who was not his wife; said rape being alleged to have been by her consent.

Appellant presents his complaints in four bills of exceptions, Nos. 2 to 5, inclusive; bill No. 1 being omitted from the record, and in other assignments in his amended motion for a new trial.

Bill No. 3 insists that when Mrs. H. C. Walker, stepmother of the alleged injured' female, was testifying in behalf of the state, she was permitted, over the objection of appellant, to state that Birdie May Walker had told her, the witness, that Otis Smith, appellant, was the author of her pregnancy, that this statement was made to her as soon as it had been discovered that the said Birdie May Walker was pregnant and knowledge of this fact had been brought home to her. The contention was that this testimony was immaterial and irrelevant, incompetent, highly prejudicial. The court qualified this bill as follows: “This bill is given with this qualification; Before this testimony was offered defendant had testified that prosecutrix called him one day, as he was passing her house, and told him that there was a tale out on him and her, and that she was knocked up [meaning that she was pregnant with child], and that she further told him that the child was not his. The evidence further showed that this conversation between prosecutrix and defendant was subsequent to the time that prosecutrix had made the statement to her stepmother that the defendant was the father of her child, complained of in the above bill, and the testimony complained of in the bill was offered and admitted to corroborate prosecutrix, defendant having testified to a contradictory statement by her.” This record discloses • that the testimony of Mrs. Walker was in rebuttal, and this court had repeatedly held that where the testimony of a witness for the state has been attacked by showing that said witness made contradictory statements to that which the witness had given upon the trial, then the state was permitted to show that the witness had made statements consistent with the testimony he was giving upon trial prior to the alleged statement testified to by the impeaching witness. Branch’s Crim. Law, § 874.

Bill No. 2 complains of the testimony of Birdie May Walker, the prosecutrix, to the effect that she had told her stepmother, Mrs. H. O. Walker, when it was first discovered that she was pregnant, that the appellant, Otis Smith, was the father of her child. The same may be said of this bill as has been said of bill No. 3, and it is unnecessary to further discuss it.

Bill No. 4 insists that, as after Birdie May Walker had testified that the defendant had had intercourse with her in September, or about that time, in 1912, and that he had promised to marry her, but that he had refused in the winter or spring of 1913 to carry out his promise, when the defendant offered to prove by his father, M. R. Smith, that he told his father, in the fall of 1912, that he was going to marry the prosecuting witness, and that he had made arrangements to make a crop for the year 1913, he should have been permitted to do so, as tending to explain his association with the girl. The state objected to this testimony on the ground that it was hearsay and self-serving, was no part of the res gestee, was immaterial and irrelevant to any issue in the cause, shed no light on the case, and constituted no defense. The court sustained the state’s objection. Appellant insists that had the witness been permitted to testify, he would have testified that his son had made the statement to him as above set out, had tried to rent a farm, etc. There is no conceivable merit in this bill under the evidence in this case. The witness Birdie May Walker had testified, as stated in this bill, that after she had found out that she was pregnant, she called the appellant by her house, informed him of her pregnancy, and asked him to marry her, and that he flatly refused to do so, saying that it was not his child. The appellant took the stand in his own behalf, and testified substantially as did the witness Birdie May Walker. There was no dispute about this proposition, and appellant himself testified on the trial that they were engaged to be married, and said: “The next time I went with her she discussed our plan about living together and being married, and about how happy we would be. She seemed to be trusting in me and loved. I thought she loved me —I knew she loved me. She never went with anybody else during all that time that I was going with her, but I don’t say that I stopped them. I was the fair-haired boy that was playing the favorite and they quit. We were engaged,- and she put her whole trust in me so far as I know. Nobody else was allowed to go Sunday nights but me. I don’t know whether I was five or six years older than she was or not, but I am 20 years of age, and if she is but 15 years old I am 5 years older than she is. I am a boy with a pretty smooth tongue and talk pretty glib, ready for an answer for anything that comes along. From October till February nobody else, so far as I know, ever went with her. She did" not tell me all of her little secrets, nor tell me everything she knew. It was very seldom that she ever told me anything that way. I gave her a ring, but it was not an engagement ring, though I was engaged at the time I gave it to her. I did not give the ring to her at all — she pulled it off of my finger and would not let roe have it back, I never gave her the ring. I did not give her an engagement ring because I didn’t have any. I did not let that go as an engagement ring, and I never thought anything more about it. That engagement was not impressing me much at that time. I did not mean much by it. I just engaged myself to her without any kissing or loving or hugging— just a sort of idle passing whim. That is the reason I told her I would have to study it over. I didn’t know really whether I was going to marry her or not — I had not fully made up my mind that I was. That was when we were engaged, but I was allowing her to believe it. I did not know that she believed it at that time, but after we kept on keeping company I learned that she did. It seemed to me that her whole soul was wrapped up in me. I 'knew she was a little schoolgirl and went to school, with short dresses. I came back to Frisco on the 19th of December. I had been up to Fannin county at Bonham — I went about the 12th or 15th of November and stayed a month or a little over. During that time she wrote me, and her letter's showed what she thought of me. I came back just before Christmas, and spent Christmas and on up until February. I had not fully determined on up till that time that I was going to marry her.” Herein it is seen that he himself testified that subsequent to the time he claims that his father’s testimony would relate, “I had not fully determined that I was going to marry her.”

Bill No. 5 presents substantially the same proposition as does bill No. 4, and it is unnecessary to discuss it.

In his amended motion for a new trial appellant insists that the court erred in overruling his application for a continuance, as shown by his bill of exceptions No. 1. There is no such bill, in the record, and, in the absence of a bill of exceptions, the matter sought to be presented cannot be considered by this court.

While there is a sharp conflict in the testimony, yet the state’s evidence makes a case, and this ground of the motion is without merit.

The remaining assignments in appellant’s amended motion for a new trial complain of the action of the court in refusing to give special charges requested by appellant. There is no merit in any of these contentions. The charge of the court, together with the special charges,' fully covered every phase of the case. While there was evidence of more than one act of intercourse, the court instructed the jury: “The defendant is on trial alone for an act of sexual intercourse alleged to have occurred between defendant and Birdie May Walker at a straw stack in her father’s pasture near Erisco, Tex., about the first part of September, 1912, and you cannot convict defendant for an act of intercourse on any other occasion that the one for which he is on trial, even if you should believe from the evidence beyond a reasonable doubt that the defendant was guilty of acts of sexual intercourse with Birdie May Walker on other occasions than the occasion for which he is on trial. And if from the evidence you have a reasonable doubt whether or not defendant had sexual. intercourse with said Birdie May Walker at a straw stack in her father’s pasture near Frisco, Tex., about the first part of September, 1912, then you will find the defendant not guilty.”

The judgment is affirmed.


author: PRENDERGAST, P. J.

text:
    McMILLAN v. STATE.
    (Court of Criminal Appeals of Texas.
    April 1, 1914.)
    1. Homicide (§ 300) — Trial—Instructions.
    Where self-defense' is an issue, an- instruction submitting that defense should not require the jury to believe numerous unimportant details leading up to the fatal affray, before they can acquit.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    2. Homicide (§ 300) — Appeal—Haemless Er-ro».
    Where accused set up self-defense, and there was a sharp conflict in the evidence as to how the affray started, an instruction on self-defense, which required the jury to find that the affray started in the precise manner detailed by ac-
    cused, before they could acquit, is reversible error, when duly excepted to.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    3. Homicide (§ 228) — Evidence — Corpus Delicti.
    Testimony by a physician is unnecessary to establish the corpus delicti in a prosecution for homicide; evidence that the wounds inflicted by accused were sufficient to cause death, and that death followed within a reasonable time, being sufficient.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 471-476; Dec. Dig. § 228.]
    Appeal from District Court, Haskell County; Jno. B. Thomas, Judge.
    George McMillan was convicted of manslaughter, and he appeals.
    Reversed and remanded.
    J. F. Cunningham, of Abilene, arid Jas. Stevens, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, P. J.

From a conviction for manslaughter, this appeal is prosecuted. This is the third appeal in this case. The first is reported in 58 Tex. Cr. R. 525, 126 S. W. 875; and the second in 143 S. W. 1174. From the opinions in these former appeals the case and issues can well be understood.

Self-defense was duly raised in appellant’s favor and submitted. But the court, in submitting it, gave this charge: “Upon the law of self-defense you are further instructed by the court that, if you find from the evidence that on the afternoon of May 4, 1908, the defendant was reading a newspaper in the Knox Hotel, at Knox City, Tex., and that the deceased, West, made a remark which the defendant thought was addressed to him, and that he arose and went toward deceased to learn what was said, and that the deceased looked sharply at the defendant, and the defendant stopped, and deceased commenced to whistle directly at defendant, and defendant mocked deceased, and slapped himself upon the leg, and was looking upward, and, while so doing, the deceased struck the defendant, the first lick with a poker over the head, thereby causing pain and bloodshed, and such an assault on the part of the deceased brought on a combat between himself and defendant, in which the deceased used a poker, and the defendant used his fists, until defendant was wounded and blinded by the flow of blood into his face from his wounds, and dazed and sickened by the blows inflicted upon him, and in such condition was thrust back and away from deceased, and, while in such dazed and blinded condition, it appeared to defendant, viewed from his standpoint, in the 'light of all the facts and circumstances in evidence, that he was in danger of death or serious bodily injury at the hands of deceased, and thereupon took his knife, and therewith defended himself from an attack or threatened attack upon him by deceased, and thereby cnt the deceased, and continued to cut and strike deceased until he found or believed himself out of danger, then you will acquit the defendant, and say by your verdict, not guilty.” Appellant duly excepted to this charge, elaimr ing that, by it, before they could acquit appellant on that ground, the jury were required to believe several unimportant, immaterial, and unnecessary things, which were disputed, and that, in that respect, it was more onerous upon him than the law required. A reading of it will show that, before they could acquit appellant on the ground of self-defense, the jury had to believe that the defendant was reading a newspaper in the Knox Hotel, and that deceased made a remark which defendant thought was addressed to him, and that he (defendant) arose and went towards the deceased to learn what was said, and that deceased commenced to whistle at him, and defendant mocked deceased, and the deceased slapped himself upon the leg and was looking upward, etc.

■ Under the decisions of this court, this charge requiring the jury to believe all these unimportant and unnecessary things before they could acquit, when properly excepted to by appellant, presents reversible error. Dodson v. State, 45 Tex. Cr. R. 571, 78 S. W. 940; Willis v. State, 75 S. W. 798; Graves v. State, 58 Tex. Or. R. 42, 124 S. W. 677; and other cases unnecessary to cite.

Where self-defense is properly raised, an accused is entitled to have that submitted to the jury, without being incumbered with such a mass of unimportant and unnecessary matter as this charge required the jury to believe before they could acquit. This charge seems to have been drawn based on appellant’s testimony as to these several matters. It probably would not have presented reversible error if he had not been disputed in some of them, but the record in this case shows that he was sharply and pointedly disputed in some of them; so that the court, requiring that they should believe, in effect, his testimony on these matters before they could acquit, was necessarily harmful to him.

The only other question appellant presents in his brief is: He claims the evidence is insufficient to establish the corpus delicti; that is, that no physician testified that the wounds inflicted by appellant upon deceased was the cause of his death. We do not understand the law to be that such testimony by a doctor is required. If, under all the evidence, the wounds inflicted by appellant were sufficient to cause death, and death within a reasonable time thereafter occurred therefrom, the corpus delicti would be established. Without reciting it, we think the evidence was sufficient on this point to establish the corpus delicti. However, in order to avoid such contest in another trial, the state should, as the record indicates it can, make such proof as to show clearly the corpus delicti.

There are some other questions raised in the record, but none of them present reversible error. It is unnecessary to discuss them.

For the error of the charge of the court, the judgment is reversed, and the cause remanded.


author: PRENJDERGAST, P. J.

text:
    KOGER v. STATE.
    (Court of Criminal Appeals of Texas.
    April 1, 1914.)
    1. AdulteRT (§ 14) — Fornication (§ 9*) — SUEETCIENCY OE EVIDENCE.
    Evidence, on a trial for adultery and fornication, held insufficient to sustain a verdict of guilty.
    LKd. Note. — For other cases, see Adultery, Cent. Dig. §§ 27, 31, 32; Dec. Dig. §' 14; Fornication, Cent. Dig. § 7; Dec. Dig. § 9.]
    2.Criminal Daw (§ 829) — Instructions— Requests Covered.
    Where the evidence was wholly circumstantial, and the court gave a full and fair charge, and charged fully on circumstantial evidence, an instruction that suspicious circumstances and familiarity were insufficient to prove adultery or fornication by habitual carnal intercourse, without actual proof of an a.ct of carnal intercourse, was properly refused.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. § 2011; Dec. Dig. § 829.]
    3.Criminal Daw (§ 450) — Fornication-Evidence — Admissibility.
    On a trial for adultery and fornication with W., testimony that a witness -talked with W. on the street, and that a few days later accused shook his finger at him and said, “Don’t do that any more,” without further explanation, was admissible; but the witness’ further testimony that he suspected accused referred to his talk with W. should have been excluded.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. § 1036; Dec. Dig. § 450.]
    4. Ceiminal Daw (§ 1202) — Evidence—For-. mer Conviction.
    Under Fen. Code 1911, art. 1618 et seq., relative to increased punishment for second and subsequent convictions for the same offense, where an information for adultery and fornication charged a former conviction for fornication, such former judgment of conviction on a plea of guilty was admissible; but, it not appearing, whether accused pleaded guilty to adultery or fornication, the information should have been introduced to identify the offense of which he was convicted.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 3260-3265; Dec. Dig. § 1202.]
    5. Criminal Daw (§ 1202) — Argument oe Prosecuting Attorney.
    Where, on a trial for fornication, a former judgment of conviction on a plea of guilty, for fornication with the same person, was introduced as a basis for increased punishment, the county attorney could not properly argue that the plea of guilty might be considered in determining accused’s guilt.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 3260-3265; Dec. Dig. § 1202.]
    Prendergast, P. J., dissenting in part.

      Appeal from' Ellis 'County Court; J. C. Lumpkins, Judge.
    Fred Koger was convicted of an offense, and lie appeals.
    Reversed and remanded.
    W. H. Fears, of Waxahachie, for appellant. C. E. Lane, Asst. Atty..Gen., for the State.

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

   PRENJDERGAST, P. J.

The complaint and information is in several counts; some charging adultery in that the woman was married and appellant was not married, and in another charging fornication in that both were unmarried. And, for the purpose of authorizing the jury to find double punishment, it was alleged that previously appellant had been convicted of fornication with said woman.

Appellant earnestly contends that the evidence is insufficient to sustain the verdict. We will therefore give substantially the testimony, which was as follows: The state proved by Armón Yates, deputy sheriff, Jim Ham, a constable, and Sam Bass, the city night watchman, that they knew defendant Fred Koger. That he was a young man 19 or 20 years old, who resided with his father in Waxahachie. That they knew Arnice Watson, a woman who was a servant in the family of Dr. Ferguson, and lived in a servant house on his place at West End, and about one mile from the courthouse. That they had information that Fred Koger was going to see Arnice' Watson, and in December, 1912, they watched the house of Arnice Watson some five or six nights. That they hid themselves near the barn and close to the house occupied by said Arnice Watson. That in December, 1912, they saw defendant twice come to the house of Arnice Watson. The first time he was on horse back, and did not get off of the horse; that Arnice Watson went out to the fence and they talked awhile.; that defendant then reached over the fence and hugged and kissed Arnice Watson; that some five or six nights later when they got out there defendant was standing in front of the door of the house and Arnice Watson was standing in the door of her house; that they talked a few minutes, and defendant walked off and went' down the railroad toward town. That again in January, 1913, they watched the house some five or six nights and saw defendant again go to the house. That on each occasion he was on horseback, and did not get off his horse. That once he reached over the fence and hugged and kissed Arnice Watson; then he rode off towards town. That they watched the house of Arnice Watson many nights, but did not see defendant any more until Sunday night, the 30th day of March, 1913, when said witnesses, in company with sheriff A. W. Wilson, went out to the house of Arnice Watson. Jim Ham went to a window, looked in, saw Arnice Watson in bed; defendant sitting on the side of the bed talking to her. That there was also another woman in the room.

That the woman left, and pretty soon defendant patted Arnice Watson on the breast, kissed her, and at once went out the door, where he was arrested. Jim Ham testifies that, while 'he was looking in the window, he ■found out from the conversation that Arnice Watson was sick. Sheriff Wilson testified that he filed the complaint on which defendant was arrested. They all testified that, after defendant was arrested, he said he did not want to go to jail, and asked that the sheriff take him to his father’s home that he might make bond; that the sheriff refused, saying he was going to take him to jail; that on the way defendant broke loose and ran off, but they went right on to his father’s home, and in a few minutes defendant came, and they arrested him, and would not let him go into the house to see his father, but took him to jail. Jim Ham testified he heard Arnice Watson was married. Sam Bass testified he had, known her several years, and no one lived with her as her husband during that time. Buddy Quaite testified that about six months before, one dark night, he was driving a ’car and saw defendant and Arnice Watson in a buggy; that he' knew them; and that was the only time he ever saw them together. Robert Phillips testified that one night, about three months before, he passed a man and a woman in a buggy. He could not say as to the woman, but he believed the man was Fred Koger. Tom Stewart testified that one evening about dusk he met Fred Koger and Arnice Watson; they were in a buggy. E. P. Hawkins testified: Some five or six months before, he on several occasions saw Fred Koger going towards West End; that the places he met defendant was from three-quarters to a mile from Dr. Ferguson’s, etc.., where Arnice Watson lived. Henry Snipes testified: That something over a year prior he met Arnice Watson on the street, and they stopped and talked awhile; that several days afterward defendant passed him and shook his finger at him and said, “Don’t do that any more.” Witness asked him, “Don’t do what any more?” That defendant replied, “A word to the wise is sufficient.” Witness testified he did not know what defendant was talking about, but suspicioned he referred to his talk with Arnice Watson. The state also introduced a judgment of the county court of Ellis county, Tex., in which it appeared that on the 14th day of September, 1911, on a charge of adultery and fornication pending in said court, defendant entered a plea of guilty and was fined $100, but it does not appear whether he pleaded guilty to adultery or fornication. We are inclined to believe that the evidence in this case is insufficient, as contended by appellant, to sustain the verdict.

The court gave a full and fair charge in this case, and, among others, a full charge on circumstantial evidence. . The court did not err, therefore, in refusing appellant’s first •special charge to the effect that suspicious-circumstances and familiarity are not sufficient to prove adultery or fornication by habitual carnal intercourse without actual proof of an act of carnal intercourse. Carnal intercouse between all persons is indulged as secretly and as privately as possible. Such act must generally, if not always, be proved by circumstantial evidence, and, while suspicious circumstances and familiarity alone might not be sufficient, such charge should not have been given in this case.

While it was admissible for the witness Henry Snipes to testify to what occurred and was said by appellant to him, and that a few days prior thereto he had a short talk with the woman Arnice Watson on the streets of Waxahachie, it was improper, and the witness should not have been permitted to testify that he thought appellant’s said talk to him referred to his (the witness’) talk with Arnice Watson. His thought or suspicion should not have been admitted. The jury could pass upon that question from the other testimony of the witness.

The court did not err in permitting the testimony of Robert Phillips, objected to and shown by appellant’s fourth bill of exceptions. The testimony was admissible. The weight of it was for the jury.

The former judgment of conviction of appellant was admissible in evidence, but upon another trial, in order to show that it was a repetition of the same offense, the state should introduce the information upon which said judgment was based, so as to clearly identify for what offense he was convicted. Article 1618 et. seq., P. O.; Muckenfuss v. State, 55 Tex. Cr. R. 216, 117 S. W. 853.

The writer believes the county attorney was justified and could properly argue that if the former conviction was for the same offense as this, and appellant pleaded guilty thereto, the jury'could consider appellant’s confession or plea of guilty in that case and the judgment thereon in connection with the other facts and circumstances of this case. His former confession and conviction, if for the same offense, might cut both ways, however. The state could contend, as it did, as shown by the argument of the county attorney. Appellant could contend that, having been convicted before and punished therefor, it would show or tend to show that he would not again be guilty of the same offense and thereby incur double punishment, and that, instead of being against him, together with the other facts and circumstances, it was for him to show he was not guilty in this case. These matters were matters of argument before the jury. The jury could pass upon the question and take either side of the deduction, and it would be for or against him, as they might determine ; they passing on the weight to be given to the testimony in that matter as all others.

It is only by reason of the fact of appellant’s plea of guilty or confession in the former case that such comment was permissible. A mere conviction of him without any plea of guilty or confession could not so be commented upon. The court, however, is of opinion this was not permissible, and on another trial it should not be permitted. There is nothing else requiring discussion.

For the errors above pointed out, the judgment is reversed, and the cause remanded.


text:
    NORTH v. STATE.
    (Court of Criminal Appeals of Texas.
    March 18, 1914.
    Rehearing Denied April 15, 1914.)
    Criminal Law (§ 1097) — Appeal — Statement op Facts — Necessity.
    Where defendant was arrested six months before trial, an objection that he was forced to trial without an attorney to represent him cannot be considered, in the absence of a statement of facts.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2862, 2864, 2926, 2934, 2938, 2939, 2941, 2942, 2947; Dec. Dig. § 1097.]
    Appeal from Johnson County Court; J. B. Haynes, Judge.
    Frank North was convicted of a violation of the local option law, and he appeals.
    Affirmed.
    Phillips & Rice, of Cleburne, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted of violating the local option law, and his punishment assessed at a fine of $65 and 60 days’ imprisonment in the county jail.

The record before us contains neither statement of facts nor any bills of exception. In the motion for a new trial appellant complains that he was forced to trial without an attorney to represent him. The information in this ease was filed April 15, 1913. The case was called for trial December 23, 1913, more than six months after his arrest. While the right to be heard by counsel is a valuable right, and one that cannot be ruthlessly taken away, yet one charged with crime must usé due diligence to procure counsel to represent him. In the absence of a statement of facts, no question is presented we can review.

The judgment is affirmed.


text:
    MARTIN v. STATE.
    (Court of Criminal Appeals of Texas.
    March 18, 1914.
    Rehearing Denied - April 15, 1914.)
    1. Criminal Law (§ 1160) — 'Verdict—Con-clitsiveness.
    A conviction for rape, supported by the testimony of prosecutrix and corroborating circumstances, and approved by the trial .judge, will not be disturbed on appeal merely because of contradictory evidence.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 3084; Dec. Dig. § 1160.]
    2. Rape (§ 17)—-Under Age op Consent-Justification.
    One having intercourse with a girl under 15 years of age cannot justify his act on the ground that he believed she was over 15 at the time, and his mistake arose from want of proper care on his part.
    [Ed. Note.—For other cases, see Rape, Cent. Dig. § 20; Dec. Dig. § 17.]
    3. Rape (§ 59)—Under Age of Consent-Justification.
    Where, on a trial for statutory rape, the only issue was whether prosecutrix was under or over 15 years of age, and the testimony was conflicting, and there was no evidence that, if she was under 15, accused had used any care to ascertain that fact, an instruction that if accused assaulted prosecutrix, but the jury have a reasonable doubt as to whether she was at the time under the age of 15 years, accused should be acquitted properly submitted the issue, since there was no evidence to bring accused within Pen. Code 1911, art. 47, prescribing when a mistake of fact is an excuse.
    [Ed. Note.—For other cases, see Rape, Cent. Dig. §§ 88-100; Dec. Dig. § 59.]
    Appeal from District Court, Travis County ; George Calhoun, Judge.
    Neal Martin was convicted of crime, and he appeals.
    Affirmed.
    E. T. Moore and Charles Rogan, both of Austin, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted of statutory rape, and his punishment assessed at five years’ confinement in the penitentiary.

Appellant shows that, prior to being charged with this offense, he bore a good reputation as a peaceable, law-abiding citizen. He also introduced some testimony tending to show that he was impotent, and it was therefore impossible for him to have' committed this offense. However, the girl swears positively to several acts of intercourse, and the jury evidently believed her and the testimony offered in behalf of the state. Appellant introduced many circumstances tending to render the testimony of the girl incredible, yet, .in spite of all this testimony, the jury finds she was telling the truth; that appellant did have intercourse with her. The district judge who tried this case refused to disturb their verdict, and shall we, who did not hear the testimony as delivered, see the witnesses, nor their manner of testifying, hold that the jury and the trial court were in error in giving credence to her testimony? If it was unreasonable, or if it did not make a ■case, we would not permit the verdict to stand, but the facts as detailed by her make a case, and other circumstances corroborate her, and we do not feel authorized to disturb the judgment. While quite a severe arraignment of district judges in general was made in -the argument, yet they, like ourselves, are sworn officers of the law, and it is their, as well as our, duty to see that no unjust judgment is permitted against any citizen of this state. We have implicit faith and confidence in the trial judges, and that they will do their duty, and we always give great weight to their action in a matter of this kind, and feel that in doing so we are but following the plain intent of the law. They feel their responsibilities, as we do ours, and will protect the innocent as.well as punish the guilty. The contention that the evidence is insufficient, and for this reason the judgment should be reversed, cannot be sustained.

The only other contention that need be discussed is that the court erred in failing to charge the jury as follows, at the request of appellant: “That, if Richetta Coleman was under 15 years of age at the time of the act, such act was unlawful, whether done with or without her consent, unless you believe from the testimony that the defendant at the time was laboring under a mistake as to a particular which would excuse him in law had such fact existed, to wit, as to the age of the said Richetta Coleman. That is, as to said Richetta Coleman being over the age of 15 years at the time of the act. According to the law, if a person, laboring under a mistake as to a particular fact, shall do an act which would otherwise be criminal, he is guilty of no offense, if the fact about which he conjectured and was mistaken would have excused him had such fact existed as believed. Now, if you believe from the evidence in this ease that the defendant had carnal intercourse with Richetta Coleman, and that she was under 15 years of age at the time, but that she was willing and consented to such act, and if you further believe that the defendant honestly conjectured and believed that she was over 15 years of age at the time, you cannot convict him, but must acquit him, provided you further believe that such mistake did not arise from want of proper care on his part.” This question has been decided adversely to appellant’s contention. Robertson v. State, 51 Tex. Cr. R. 495, 102 S. W. 1130.

The court instructed the jury: “Unless the jury believe from the evidence beyond a reasonable doubt that the defendant, Neal Martin, had actual carnal knowledge of the said Richetta Coleman, as hereinbefore explained and defined, they will acquit the defendant. If the jury believe from the evidence, beyond a reasonable doubt, that the defendant, Neal Martin, had carnal knowledge of the said Richetta Coleman, but have a reasonable doubt as to whether or not at the time he had carnal knowledge (if he did have such carnal knowledge) she was under the age of 15 years, then they will acquit the defendant.” The evidence shows that appellant had known the prosecuting witness from her birth up to the present time. He testified she was over 15 years of age, as did several other witnesses. This was an issue that was properly submitted to the jury, and they find against such contention. There is no evidence that would bring appellant within the provisions of article 47 of the Penal Code, for, by the evidence, the only issue raised was whether or not she was under or over 15 years of age, and there is no testimony that, if she was under 15 years of age, appellant had used any diligence or care to ascertain that fact.

The judgment is affirmed.


text:
    WEATHERFORD v. STATE.
    (Court of Criminal Appeals of Texas.
    April 1, 1914.)
    FORGERY (§ 44) — SUFFICIENCY 03? EVIDENCE.
    Evidence, in connection with a plea of guilty, held to sustain a conviction for forgery with the imposition of the lowest authorized penalty.
    [Ed. Note. — For other cases, see Forgery, Cent Dig. §§ 117-121; Dec. Dig. § 44.]
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    Jessie Weatherford was convicted of forgery, and appeals.
    Affirmed.
    C. E. Dane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted, charged with forging the following check:

Dallas, Texas, 10 — 13 1913, No. 183. Guaranty State Bank & Trust Co.
32 — 14
Pay to the order of Jessie Norton $18.50/100
Eighteen 50/100 .Dollars
Star Bakery,
W. M. Schliepake. •

When the case was called, after being duly warned and instructed as required by law, she entered a plea of guilty. The only evidence introduced by the state was the following : W. A. Ball testified he was salesman for Henry Pollock Trunk Company; -that as such salesman, he waited on appellant, and she gave him the cheek, and she at that time claimed her name was Jessie Norton. W. M. Schliepake testified that he did not sign the check, nor authorize any one else to sign his name to it.

The record does not disclose that the check was introduced in evidence, but it is manifest that it was shown to the witnesses in the presence of the jury, and that she entered a plea of guilty to forging the check set out in the indictment. The only question presented is: Is this sufficient testimony to support a judgment on a plea of guilty. Article 555, C. C. P., provides that, where a person charged with felony enters a plea of guilty, if the punishment of the offense is not absolutely fixed by law, and beyond the discretion of the jury to graduate, a jury shall be impaneled to assess the punishment, and evidence submitted thereon to enable them to decide thereupon.' While this statute has been held to be mandatory, and this court has said that it is not merely for the benefit of the defendant, but that it was also intended to safeguard the interests of the state, yet in Doans v. State, 86 Tex. Cr. R. 468, 37 S. W. 751, it was held that, where the defendant entered a plea of guilty, he cannot urge the insufficiency of the evidence, if the record discloses that evidence was introduced tending to connect him with the offense. As the jury assessed against the appellant the lowest penalty authorized by law, she will not be heard to complain that the evidence adduced did not conclusively show her guilt. In connection with her plea of guilty, it did sufficiently tend to show her connection with the offense charged, forging the check described in the indictment, signed W. M. Schliepake, who testified he signed no such check. This will support the verdict.

The judgment is affirmed.


text:
    BURNETT v. STATE.
    (Court of Criminal Appeals of Texas.
    April 1, 1914.)
    1.Criminal Law (§ 598) — Harmless Error —Refusal of Continuance.
    Refusal of continuance for absence of witnesses cannot be complained of, they having arrived before conclusion of the trial, if not before conclusion of the testimony, and White’s Ann. Code Cr. Proe. art. 698, providing that introduction of testimony at any time before conclusion of argument shall be allowed, if it appears necessary to due administration of justice.
    [Ed. Note. — For other cases, Law, Cent. Dig. §§ 1335-1341; 598.] see Criminal Dec. Dig. §
    2.Criminal Law- (§ 1166) — Harmless Error —Refusal of Continuance.
    Refusal of continuance for absence of a witness was harmless; all that it was stated be would testify to being a fact as to which there was no question.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3100-3102, 3107-3113; Dec. Dig. § 1166.]
    3. Witnesses (§ 350) — Credibility—Cross-Examination of Defendant.
    As affecting his credit, defendant may be asked, on cross-examination if he had not pleaded guilty to theft, and this though it was in a justice court, which had jurisdiction only as an examining court.
    [Ed. Note. — For other cases, see Witnesses. Cent. Dig. §§ 1140-1149; Dec. Dig. § 350.]
    4. Affidavits (§ 5) — Taking by Defendant’s Counsel — Motion for New Trial.
    Affidavits accompanying a motion for new trial may not be sworn to before defendant’s counsel.
    [Ed. Note. — For other cases, see Affidavits, Cent. Dig. §§ 18-27 ; Dec. Dig. § 5.]
    5. Criminal Law (§ 938), — New Trial — Newly Discovered Evidence.
    Motion for new trial, on the ground .of newly discovered evidence, may not be based on matters which defendant knew, as well before as after trial, that witness knew; but, in case of surprise, defendant should have taken steps for a postponement. i
    [Ed. Note.- — For other cases, see Criminal Law, Cent. Dig. §§ 2306-2315, 2317; Dec. Dig. § 938.!
    Appeal from District Court, Angelina County ; L. D. Guinn, Judge. •
    Arthur Burnett was convicted of theft, . and appeals.
    Affirmed.
    Sam H. Townsend and W. J. Townsend, Jr., both of Lufkin, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was jointly indicted with Dave Havard, charged with the theft of one head of cattle, the property of Fred Dearmond; a severance was granted and appellant placed on trial.

Appellant testified in the case and admitted assisting Dave Havard in killing a cow, at the time and place charged, but says he was employed by Havard to assist him (Havard) in killing the cow; that Havard represented to him that it was his (Havard’s) cow, and he, appellant, believed it to be Havard’s cow; that the cow killed was branded “D” on right hip. We think the record would authorize the jury to find, if it does not conclusively show, that the cow killed was the property of Mr. Dearmond, and was branded “HC” on hip, and not “D,” as testified to by appellant.

In his first bill of exceptions appellant complains that the court erred in overruling his application for a continuance on account of the absence of the witnesses Mrs. Fannie Havard, Sam Horton, and Tom Du Bose. The record discloses that when the court overruled the application he had process issued for these witnesses, and while their attendance is not shown to have been obtained before the conclusion of the testimony, yet it does not disclose that before the conclusion of the trial of the case the attendance of Mrs. Fannie Havard and Sam Horton was secured, and the court in approving the bill says if at the conclusion of the testimony the defendant had requested that a postponement be had until the witnesses arrived, he would have granted it. Article 698, White’s Ann. Code Or. Proc., provides that . the court shall allow testimony to be introduced at any time before the argument is concluded, if it appears that it is necessary to a due administration of justice. When the witnesses arrived appellant should have then tendered them as witnesses, even if the testimony had closed and argument begun. As to the witness Tom Du Bose, all it was stated he would testify is that while the beef was : being peddled he purchased a portion of the ' beef from Dave Havard, and paid Havard ! for it; that appellant was with Havard at the time, and did not claim any part thereof. That the beef was peddled out, in the main, ¡ and that Havard made the sales, is a fact about which there was no question; conse- ■ i quently the absence of the witness Du Bose would not present reversible error; and, as the record discloses the attendance of the other witnesses was secured before the conclusion of the trial, the court did not err in • refusing to grant a new trial on this ground in the motion.

. ’ In another bill it is shown that, on the cross-examination of appellant, he was asked if he had not pleaded guilty to theft of some turkeys, and he answered that he had. On redirect examination it was shown that he entered his plea in the justice court, and appellant moved to strike out the testimony on the ground that the justices of the peace have no jurisdiction to accept pleas of guilty in theft cases. Justice courts have jurisdiction to entertain complaints for theft and conduct examining trials, and, if the evidence justifies, bind a person over to the district or county courts, whichever court would have jurisdiction, and one could enter a plea of guilty on this trial, while the court was conducting an examination as to whether or not he would be bound over. Of course, the court could enter no final judgment of conviction, but only a judgment binding the person to appear before the court having jurisdiction of the offense, yet evidence that such a complaint had been filed, and he had entered a plea of guilty on this examining trial, would be admissible as affecting his credit, theft, even if a misdemeanor, being an offense involving moral turpitude. The only error the court committed was at the request of appellant in striking this testimony from the record, and instructing the jury not to consider it.

. : ' ! ¡ t ■ ■ These are all the bills in the record, and there is no complaint as to the charge of the court as given. So the only other matter that need be discussed is the ground alleging newly discovered testimony. In the first place, all the affidavits attached to the motion were attempted to be sworn to before appellant’s counsel. It has been held by this court, in an unbroken line of decisions, that counsel in the case are not authorized to take'such affidavits. Maples v. State, 60 Tex. Cr. R. .169, 131 S. W. 567. The reason for this rule is aptly illustrated in this case. The affidavit of the sister-in-law of appellant, Mrs. Babe Burnett, appears in the record, sworn to before appellant’s counsel, in which it is stated she would swear, “about two days before the trial of appellant, that Alice Conley (a witness for the state) was at her house, and had said she was mad at Dave Havard and appellant, and was going to swear that appellant proposed to her if she would swear for him and Dave, she would be well paid for it; that in fact she did not know anything about the case, but was going to so testify because she was mad at him.” The witness Alice Conley did swear on the trial that such proposition had been made to her by appellant, and she refused it. However, in answer to this affidavit, the state presents the affidavit of the father of Mrs. Burnett, and Mr. Pride swears: “I know Mrs. Babe Burnett. She is my daughter. Yesterday evening late, I learned that she had been brought to Lufkin as a witness to testify for defendant, Arthur Burnett, on his motion for new trial. Shortly after her arrival I saw her and talked with her, and she told me that she had signed an affidavit, the one set out in defendant’s motion, and upon my questioning her about the matter, she admitted to me and said to me that she really did not sign the said affidavit, and told the parties insisting upon her doing so that she did not want to sign it, but after awhile she agreed for her husband, Marshall Burnett, who is the brother of Arthur, the defendant, to sign her name to it. She also told me that the girl, Miss Alice Conley, had talked with her, and she did not remember just what the conversation was, and that was the reason that she did not want to sign the affidavit, but that appellant’s counsel told that she had just as well sign the affidavit, that he had it anyway, and that if she did not sign it, she could go back home. I know that she, my daughter, did go back home on the early morning train, and is not here now.” This but illustrates that in justice to counsel, as well as in the interest of public policy, counsel in a case should not be permitted to take testimony in a case, or swear witnesses to affidavits or other papers in a case.

As to the affidavit of Mrs. Letha Johnson, it shows that appellant knew that Mrs. Johnson knew these facts, as well before as he did after the trial, for she says he was present on the occasion and took part in the conversation, and if he. was surprised at the testimony of Miss" Conley, he should then have withdrawn his announcement, or moved to postpone until the witness, or witnesses, who would swear to these facts could be obtained. It is not allowable to continue with the trial, and, if it results adversely, then set these matters up in the motion • for new trial. This would be trifling with the court. As hereinbefore stated, the affidavits are not verified in a way we can consider them, but, if so, under the rules of law governing newly discovered evidence, they would not present reversible error. Por a list of authorities so holding see section 1149, White’s Ann. C. G. P. and each subdivision of said section.

The judgment is affirmed.


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

text:
    WILLIAMS v. STATE.
    (Court of Criminal Appeals of Texas.
    March 4, 1914.
    Rehearing Denied April 15, 1914.)
    Homicide (§ 286) — Justification—Instructions.
    Where, in a prosecution of accused for killing his wife, the state introduced his confession, in which he stated that he intentionally shot his wife while in flagrante delicto with another, which, by Pen. Code 1911, art. 1102, is declared justifiable homicide, an instruction that, if accused discovered his wife in such offense, and shot intending to kill her paramour, but accidentally struck and killed her, they should acquit was prejudicial error, though he testified that he shot at his wife’s companion, and accidentally struck her.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. §§ 586-591; Dec. Dig. § 280.]
    Appeal from District Court, Kaufman County; E. L. Hawkins, Judge.
    Sid Williams was convicted of murder in the second degree, and he appeals.
    Reversed.
    Woods & Morrow and S. J. Osborne, all of Kaufman, for appellant. J. S. Terry, Co. Atty., of Kaufman, and C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, J.

Appellant was convicted of murder in the second degree; the jury assessing his punishment at 50 years’ confinement in the penitentiary.

In making a statement of this case, it is fairly correct to state that appellant’s wife, deceased, had conducted herself in such way as to show she had been unfaithful to her marital vows, and had been sufficiently indiscreet as to be guilty of illicit intercourse with other men. These matters brought trouble between appellant and his wife. It became sufficiently notorious for his landlord to request, and appellant to comply with the request, to move her from his (landlord’s) premises. On two occasions she left appellant, and it is a correct conclusion to state she had ceased to care for him, and was guilty of the indiscretion above mentioned.

Appellant’s testimony is, substantially, that, on the night previous to the homicide the following morning, he had made arrangement to haul wood from a point about four or five miles distant from his residence. A young man who lived on the place was to accompany him and drive the wagon. They left early the next morning, about or before day — at least, very early in the morning — the young man driving the wagon, appellant going a nearer way afoot to join him at a designated point. Appellant did not join him, but returned to a ravine. He testifies the night before he heard Jim Pollard, a cousin of his wife, and his wife talking, in which conversation a date was made between them by which they were to meet at a ravine a few hundred yards from his residence; that, instead of going after the wood, he returned to this ravine and watched. The parties did not make their appearance at the ravine, but later he saw his wife and deceased meet behind-the barn; his wife laid do\vn, as did deceased, in some weeds; that he immediately went to where they were, and, as he approached, Pollard jumped up, as did his wife, she pulled down her clothing, and they ran towards the house, he pursuing them. As Pollard ran towards the house, and when near it, lie picked np an axe and entered ttie bouse. His wife picked upon a stick of wood and entered the bouse. Appellant immediately entered tbe bouse. They bad some discussion, and Pollard threatened to kill bim, and made a “plunge” at bim. Appellant shot at Pollard, and shot bis wife. His wife immediately ran out of tbe bouse, something like 100 yards, where she fell and died. He shot Pollard two or three times, but Pollard survived, and testified on the trial. There is evidence also to tbe effect that be bad previously caught Pollard and bis wife in tbe act of intercourse on a bed in bis room. Tbis may be sufficient, so far as tbe defensive theories are concerned.

A state’s witness, who claims to have been present at tbe bouse of appellant at tbe time of tbe trouble, controverts appellant’s statement as to tbe matters occurring in tbe room, as to tbe attack of Pollard on appellant, and as to shooting tbe wife in tbe bouse. Tbe state’s theory, without going into details, is that appellant shot Pollard in tbe bouse, and, while be was doing so, bis wife left the room; that be pursued and shot her at a distance of something like 100 yards from tbe bouse. Tbe state also controverts tbe fact by. a witness as to tbe probabilities or possibilities that Pollard and tbe wife of appellant could bave been engaged in tbe act of intercourse, or been seen by appellant in a- compromising position, about which be testifies. Tbis witness does tbis more by tbe process of elimination than by positive evidence. He was not out of tbe bouse, while Pollard and tbe wife of appellant were out of tbe bouse. But be states they did not have tbe time to engage in tbe matters about which appellant testified, and that, if so, be could bave known it. Tbe substance of bis testimony by tbe circumstances and incidents-goes to show that Pollard and tbe wife, of appellant did not bave tbe time to do wbat appellant says be caugbt them doing, and therefore that phase of appellant’s testimony is- not true. Pollard was used as a witness, ana be denied tbe-matters testified by appellant, so far as tbe act or attempted act of intercourse at tbe barn and his intimate relations with appellant’s wife are. concerned. Tbe families were intimate, being neighbors, and related, tbe wife of appellant being, tbe cousin of 'Pollard. It is a-lso in evidence that a young man who was to drive tbe wagon for tbe wood had, tbe night previous to tbe homicide, slept at Pollard’s bouse, but be came home early in tbe morning to go with appellant after tbe wood. Tbis young man was requested by appellant to borrow á gun that was, at Pollard’s. Appellant’s evidence is to tbe effect that be wanted to borrow a shotgun. Tbe young man borrowed a pistol from Mrs. Pollard. Pie seemed to have understood that appellant wanted a pistol; both agree defendant used the word gun. Tbis seems to- be tbe only pistol at Pollard’s bouse, and there is some evidence to tbe effect that Pollard was tbe owner of tbe pistol, instead of his wife. Anyway, the young man brought tbis pistol to appellant’s bouse. Immediately after appellant and tbe young man left appellant’s residence, going to haul wood, Pollard came to appellant’s residence. Tbe facts are un-controverted on this line, and also that be did not return home for breakfast, and was carried home after being shot by appellant. Tbis is a sufficient statement of tbe case to bring in review tbe questions raised for revision.

1. There was a bill of exceptions reserved to tbe introduction of some statements or purported confessions made by appellant on two occasions. Tbe evidence fairly shows be was under arrest at tbe time they were made. Plis contention is that these matters were inadmissible, because it was not shown be was warned, and there was no evidence that be signed the statement. These confessions or statements were in writing, and are found in tbe statement of facts, but are not copied in tbe bill of exceptions, nor referred to in statement of facts and made part of tbe bill. Therefore, under tbe authorities, tbe bill is insufficient to require tbis court to revise tbis ruling of‘the trial court. Without going into any discussion of tbis matter, we would say, if upon another trial these matters are offered in evidence, tbe state should be required, under terms of tbe statute,' to connect up tbe matter fully before introducing tbe confessions or written statements. Tbe burden of proof is on tbe state when confessions of tbis nature are sought to be introduced against the accused to show their competency. Tbe matter is discussed in Thomas v. State, 35 Tex. Or. R. 178, 32 S. W. 771. Tbis much is said in reference to tbis matter in view of another trial.

2. Appellant contends tbe court erred in not charging upon self-defense. We are of opinion tbis proposition is correct. The de- • fendant testified that, as Pollard ran into bis, appellant’s, bouse, be picked up an axe. He does not say positively that be carried tbe axe in tbe house, but be testifies, as be ran in tbe bouse, be picked up tbe axe, and that bis wife picked up a stick of-wood. After getting in tbe house, and during their- little discussion in there, be says Pollard ‘¡plunged” at bim, and be thought be was going to kill bim, and be shot bim. Tbe court may not bave believed appellant, in view of the state’s testimony and from tbe circumstances, but that is immaterial. Defendant testified to tbe fact which would raise the issue of self-defense, and tbe jury was to judge tbis matter under appropriate instructions. ’ Wherever tbe testimony raises an issue, weak or strong, that is beneficial to tbe accused, it is the imperative duty of tbe court to submit that issue, under appropriate instructions, for solution by tbe jury.

S. The court gave this charge on manslaughter: “Now, if you believe from the evidence beyond a reasonable doubt that the defendant, Sid Williams, with a pistol, which was a deadly weapon, or instrument reasonably calculated and likely to produce death by the mode and manner of its use, in sudden passion aroused by an adequate cause, with intent to Mil, did shoot said Lizzie Wil-iams, and thereby kill her, you will find defendant guilty of manslaughter, and assess his punishment at imprisonment in the penitentiary for any term of not less than two nor more than five years.” Various objections are urged to this charge. We tMnk this charge is subject to criticism, in that it placed the burden of proof upon appellant, and requires the jury to believe beyond a reasonable doubt that the matters occurred which would reduce the killing to manslaughter, before they could acquit of murder and convict of manslaughter. This is not the law in Texas. See Eanes v. State, 10 Tex. App. 421; Huddleston v. State, 54 Tex. Cr. R. 97, 112 S. W. 64, 130 Am. St. Rep. 875; Melton v. State, 47 Tex. Or. R. 457, S3 S. W. 822. These are sufficient number of cases to cite on this proposition. The reasonable doubt is in favor of the defendant; the burden of proof is on the state.

4. The court gave the following charge:

“Our statute provides that homicide is justifiable when committed by the husband upon the person of any one taken in the act of adultery with the wife, provided the killing take place before the parties to the act of adultery have separated.” This is subdivision '19 of the charge. Subdivision 20 is in the following language: “If you believe from the evidence that defendant discovered his wife, Lizzie Williams, and Jim Pollard in the act of copulation, or about to engage in such act, and before the two had separated, that defendant shot at Jim Pollard, and that a shot intended for Jim Pollard accidentally struck and killed Lizzie Williams, then you will acquit the defendant.” We suppose this charge was intended to comply with article 1102 of the Revised Penal Code, which reads as follows: “Homicide is justifiable when committed by the husband upon the person of any one taken in the act of adultery with the wife; provided, the killing take place before the parties to the act of adultery have separated.”

It has been held, in accordance with this statute, that, where the husband apprehends his wife in the act of adultery or copulation, and slays before the parties have separated, he is guilty of no grade of homicide. Massie v. State, 30 Tex. App. 64,16 S. W. 770; Morrison v. State, 39 Tex. Cr. R. 519, 47 S. W. 369; Price v. State, 18 Tex. App. 474, 51 Am. Rep. 322; Gregory v. State, 50 Tex. Cr. R. 73, 94 S. W. 1041. The criticism of this charge by appellant is that the court did not explain to the jury the meaning of the term “taken in the act of adultery,” and also the term “before the parties to the act of adultery have separated.” These exceptions to-the charge were well taken. For full discussion of this matter, see Price v. State, 18-Tex. App. 474, 51 Am. Rep. 322. As this charge is given, the jury may well have concluded, under the facts, without appropriate instructions, that they could not give appellant the benefit of this statute, unless the appellant shot and killed at the very time of the act and while the parties were behind the barn. They might further have concluded from this charge that there must be shown by positive evidence the physical fact of intercourse or copulation. This statute does not mean either. It is not necessary to prove by positive facts that the defendant saw the parties in the actual act of intercourse. This may be proved by circumstantial evidence, as well as by positive evidence. The circumstances may surround the matter in such condition as would lead appellant to believe or know, or any other reasonable man to believe and know, that the parties were in the act of intercourse, or about to engage in it, or had just engaged in.it. This would justify under the statute, if the killing occurred before the parties separated. Under this charge the jury may also have been led to believe that before the killing could be justified, that the adultery must occur at the time and immediately while the act was going on. This statute does not convey that idea, nor was it intended to convey that idea. On the contrary, it was not intended by this statute to limit the justifiable killing to the immediate act of carnal intercourse; that is, while- the parties were in the act. More than that, the court should, in this, charge, have Instructed the jury what adultery meant under this statute, so that the jury might intelligently pass on appellant’s rights under his view of the case, and under - the testimony introduced by him to sustain that view.

Again, we are of opinion the court should have instructed the jury pertinently- and clearly what is meant by the statute when it uses the expression “before the parties to. the act of adultery have separated.” Would the jury infer from the charge of the court that the killing must occur at the barn before the parties left the place where appellant said he caught them? How far would they have to go, or what would have to be done in order to show what this separation meant? Our law does not mean, nor has it been construed to mean, that appellant’s right or justification is limited to the immediate act of the woman and the paramour getting apart at the time of the illicit intercourse. It means more than that. It says before the parties have separated. How far they may go before they separate is not so much the question, but they must separate at some point and get away from each other. Here there was no separation, as we-, understand appellant’s testimony. It is true. they did not' return to the house together coupled up in the act of copulation. This they could not well have done, being a man and a woman, but they Immediately proceeded from where appellant caught them together, ran in the house together, in the room together, and appellant immediately followed them, and it was there that the trouble occurred, and it occurred quickly after reaching that point.

In Price v. State, supra, then Presiding Judge White of this court takes up this question, and discusses it in a masterly manner, as was usual with him, and his custom. He discusses the statute from the viewpoint of manslaughter, in those states where this character of intercourse was manslaughter, noting the fact that Texas was peculiar in having a statute of this sort which made it justifiable homicide, whereas the other states made it manslaughter. Quoting from that opinion, Judge White said: “We are not aware that a similar statute, making such a homicide justifiable, can be found in the Codes of any other state, though the principle and precedent from which ours is derived is of most ancient origin. But in most, if not all, the states, as at common law, a killing under such circumstances would reduce the homicide from murder to manslaughter. Blackstone says: ‘So, if a man takes another in the act of adultery with his wife, and kills him directly upon "the spot, though this was allowed by the laws of Solon, as likewise by the Roman civil law (if the adulterer was found in the husband’s own house), and also among the ancient Goths, yet in England it is not absolutely ranked in the class of justifiable homicide, as in case of a forcible rape, but it is manslaughter. It is, however, the lowest degree of it; and therefore in such a case the court directed the burning in the hand to be gently inflicted, because there could not be a greater provocation.’ 4 Black. Com. (Chitty) side p. 191. Mr. Bishop states the rule as it now obtains thus: ‘If a husband finds his wife committing adultery, and, provoked by the wrong, instantly takes her life or the adulterer’s, * * * the homicide is’ only manslaughter. But if, on merely hearing of the outrage, he pursues and kills the offender, he commits murder. The distinction rests on the greater tendency of seeing the passing fact than of hearing of it when accomplished to stir the passion; and if a husband is not actually witnessing the wife’s adultery, but knows it is transpiring, and in an overpowering passion,- no time for cooling having elapsed, he kills the wrongdoer, the offense is reduced to manslaughter.’ 2 Bish. Grim. L. (7th Ed.) § 708. Our statute uses the expression ‘taken in the act of adultery with the" wife.’ The question is as to the proper meaning or construction of these terms. Do the words, when properly construed, mean that the husband must discover, find, or see the wife and adulterer in the very act of illicit intercourse or .copulation in order to constitute the offense denominated ‘taken in the act of adultery?’ Such positive proofs of the commission of the crime of adultery are not required, and are rarely attainable. As a crime, adultery itself may be established and proven by circumstantial testimony. Richardson v. State, 34 Tex. 142. Should the law hold the husband to a great or higher degree of proof than itself requires to establish a given fact? It is a late hour of the night; the parties are found in a corncrib some distance from the house, lying down in the dark. They refuse, at first, to answer when called; then, when the wife answers, she denies that any one is with her. When deceased gets up, he clutches the gun; defendant finds that the one whose previous conduct and ‘carrying on’ with his wife has excited his suspicions is the one he has thus found in company with his wife. What would any reasonable," sensible man have concluded from these circumstances? In other words, how did the matter reasonably appear to defendant? To him are not these facts ‘confirmations strong as proofs of Holy Writ?’ Could it have been otherwise than that he had caught the parties in the act of adultery, either just as they were about to commit, or just after they had in fact committed it? His voice when he called, perhaps, had arrested them in the very act of carnal coition, and, if that were so, then were not the parties caught or taken by him in adultery? Does not the law always estimate a man’s right to act upon reasonable appearances? Taking into consideration the res gestas — taking the acts of the parties and their words coupled with their acts — and were not the appearances of a character such as would have created the reasonable apprehension and conviction, in a person of ordinary mind, that the parties thus taken were taken in the act of adultery?”

Now the facts in the instant case were fully as strong or stronger than those quoted above in the Price Case. They have been already quoted, and it is unnecessary here to repeat them. Quoting from State v. Pratt, Houst. Cr. Cas. (Del.) 249, the following quotation is made by Judge White from that case: “If a husband find another in the act of adultery with his wife, and in the first transport of passion excited by it then and there kills him, it will not be murder, but manslaughter only. It is not necessary, however, that he should witness an act of adultery committed by them. If he saw the deceased in bed with his wife, or leaving it, or found them together in such a position as to indicate with reasonable certainty to a rational mind that they had just then committed the adulterous act, or were then about to commit it, the effect will be the same; and if,under such circumstances, the mortal blow was then and there given, the killing will be manslaughter merely.” - -

Quoting again from Judge White’s opinion’ we find this: “As to a proper construction of the expression ‘taken in the act,’ we cannot believe that the law requires or restricts the right of the husband to 'the fact that he must be an eyewitness to physical coition of his wife with the other party. As we have seen, adultery can be proven by circumstances, and the circumstances in this case were not hearsay, so far as this defendant was concerned; they transpired in his own presence, sight, and hearing. A mistake may possibly exist as to the fact; ‘but if a person laboring under a mistake as to a particular fact shall do an act which would otherwise be criminal, he is guilty of no offense’ (Penal Code, art. 45), provided it be such mistake as does not arise from want of proper care on his part (Penal Code, art. 46). A party may always act upon reasonable appearances, and his guilt depends upon the reasonableness of the appearances, judged of from his own standpoint.”

Quoting further, Judge White uses the following language from Mr. Bishop: “If a husband is not actually witnessing his wife’s adultery, but knows it is transpiring, and in an overpowering passion, no time for cooling having elapsed, he kills the wrongdoer, the offense is reduced to manslaughter” — citing State v. Holme, 54 Mo. 153; Biggs v. State, 29 Ga. 723, 76 Am. Dec. 630; Cheek v. State, 35 Ind. 492. And to the same effect is Maher v. State, 10 Mich. 212, 81 Am. Dec. 781.

Judge White further says: - “If the offense would be manslaughter at common law, and, in most of the other states, it would in like circumstances be justifiable homicide under the special provisions of our statute.” Penal Code, art. 1102.

In the Price Case the court gave this charge predicated upon the statute: “If the jury find that the defendant shot and killed the said Chandler at the time and place as alleged, and it also appears from the testimony that defendant shot and killed said Chandler when taken in the act of adultery or carnal intercourse with the wife of the defendant, and before they (Chandler and the wife) had separated, then they will find him not guilty.” Quoting from Judge White further: “The very gist of the issue made by the facts in the case was as to whether the facts tended to show that the parties were ‘taken in the act of adultery,’ and, in all such cases, we imagine, the principal contest will be as to that fact. Such being true, it is a part of the law of such cases that the jury should be properly instructed as to what is meant by the expression ‘taken in the act.’ Without some explanation of the phrase, a jury would scarcely be able to comprehend and understand its import, so as correctly to apply it to the facts. They would, perhaps, be most likely to interpret it as meaning that the parties must be taken in the very act and process of carnal intercourse and copulation. Again, it was important that the jury should have been instructed as to the meaning of the other expression used in the statute, ‘before the parties to the act of adultery have separated.’ Giving the language a too literal construction, they might infer that it meant that the parties must be physically united with the rem in re, in the act of copulation, and that it would be a separation, though they might still be in the same bed or same room. Evidently the statute means no such thing, and contemplates only that the parties are still together in company with each other, after the act, when the homicide is committed. Again, it is most clear that the word ‘‘adultery,’ as used in the statute, cannot be, or mean, the adultery which is defined as a specific offense by the Code, and which is ‘the living together and carnal intercourse with each other, or habitual carnal intercourse with each other,’ etc., of a man and woman, etc. Penal Cod'e, art. 333. It cannot be that statutory adultery must be shown by a husband justifying under the law we are discussing. Evidently ecclesiastical adultery is meant — adultery as it is known in common parlance — ‘violation of the marriage bed,’ whether the adultery consisted of but one or more acts, or whether the parties lived in habitual carnal intercourse or not. It was part of the law of the case that ‘adultery,’ as used in this statute, should have been explained to the jury.”

I have thus quoted liberally from Judge White’s great opinion. It is so clear, lucid, and convincing that it ought to settle these questions. The criticism, ■ therefore, by appellant of the charge given is clearly correct. The court committed a fatal blunder in failing to instruct the jury as it should have done on these phases of the statute.

There is another question which is deemed necessary to mention. The court limited appellant’s right to kill to the fact that he shot at Pollard and incidentally killed his wife. We are of opinion that this is too restrictive, though the question is not raised. We simply call attention to this so, upon another trial, this may not arise. If the common law and the authorities cited in this opinion, supra, lay down the correct rule as to manslaughter, where the husband had the right to kill his wife subject to punishment for manslaughter, then our statute means the same thing as to justifiable homicide. If Judge White is right, appellant would be also justified in killing his wife intentionally, as well as incidentally in shooting at Pollard. We call attention to this for another trial, and we do this for the reason that the state’s evidence shows that the woman was pursued out of the house something like 100 yards, and there shot' and killed after a scuffle between them, and the jury may have well concluded in this connection that appellant was not correct in his testimony as to shooting her in the house, because she was shot in the head over the right ear, the ball coming out from the top of the head. She would hardly be able to run 100 yards after a wound of that sort. The writer would not say she could not, but, in all probability, she was not able to do so. The writer wants to say he has never yet been able to find any definite rule that controls actions of wounded people. Pages might be written enumerating illustrations where apparently fatal wounds through the brain did not eliminate the power of speech or power of reason and locomotion, and even men have gotten well after they have been shot in the brain.' But the writer is not going into a discussion of those matters. This phase of the case is especially called to the attention of the court also with reference to the question of manslaughter. If appellant’s mind was so aroused by the 'act of intercourse he had seen, and by incidents following it and connected with it, that it was incapable of cool reflection, and he killed his wife for the reasons indicated, although he had chased her away from the house, still he might not, be guilty of anything higher than manslaughter. Of course, most of these matters are incident to and connected with the defensive theory. It is not intended to make the defense the paramount issue in the case, but it is, intended here to say that every issue presented by the evidence beneficial to defendant must be given in appropriate charges. This defendant was given 50 years for murder in the second degree. It might be that the jury would have found him guilty of no higher offense than manslaughter, even if they should find, under all the facts and circumstances, that the parties had so thoroughly separated that justifiable homicide was out of it.

We have examined this record with some degree of care. It is entertaining in many respects, and the matters have not often been discussed and decided by the court in this state, but there seems to be no reason given in this record for the trouble from either standpoint, except the illicit relations between Pollard and appellant’s wife. It is true, he had been jealous of other men, and she had been, to say the least of it, more than indiscreet with them. If the testimony is to be credited, appellant believed that she was intimate with Pollard The families to this’ time had been friendly, related by consanguinity, marital relations, friendship, and all those ties that bind human families together, and for this reason appellant assigns this jealousy and his act in killing. He predicates the reason for the fearful step he took in taking the life of his wife and shooting her paramour upon this illicit intercourse. We have looked for some othed reason in the record. If the state’s theory is right, then the act of intercourse did not occur, but, even from that standpoint, the conduct of the woman and Pollard and the jealousy of the appellant of Pollard are shown beyond any question. There is no other reason assigned.

■ The judgment is reversed, and the cause is. remanded.

PRENDERGAST, P. J., and HARPER, J.

(concurring).

In agreeing or concurring in the reversal of this case, we do so upon one. ground only. The court instructed the jury:: “If you believe from the evidence that defendant discovered his wife, Lizzie Williams, and Jim Pollard in the act of copulation or-about to engage in such act, and, before-the two had separated, that defendant shot at Jim Pollard, and that a shot intended for Jim Pollard accidentally struck and killed-Lizzie Williams, then you will acquit the defendant.” The state introduced the following confession of defendant:

“I, Sid Williams, do hereby state that I have been warned by J. S. Terry, county attorney of Kaufman county, Texas, in the presence of J. B. Warren, constable, and Mr. E. P. Piper, a citizen of Terrell, that I do-not have to make any statement concerning the offense with which I am charged, and that, if I do make a statement, same may be used against me upon my trial for the offense with which I am charged, or either of them, and, after such warning, I have voluntarily made in the presence of said persons, and to-the said county attorney, the following statement, to wit:
“I started off to work and came back and found my wife and cousin on the bed, and he was on her. They were in the room this way —the south room. I stepped in the back kitchen door, and I could see them good. The door runs straight through, and I saw them, and went under the shelf in the north room and got my gun and his and shot them. I do not think I said anything before I shot them, I do not remember saying anj’thing. I shot the woman first. I hit her the first time I shot. I shot her in the top of the head. The man jumped up to run. He did not get no further than the door. I shot him two or three times before he could get away from the bed. I shot him in the door. She ran out, and fell about 100 yards from-the house. I do not think I shot her but once on the bed. I did not go out to where she fell until Mr. Warren came. I did not follow her out then. I went to Mr. Bunley’s-immediately after the shooting. I phoned for Mr. Piper at Levy’s. I told them I had killed them. I intended to kill them. I never went back into the house any more until' Mr. Warren came. I do not believe I went in the house then. Mr. Warren is constable. I had his pistol and mine too. The boy who was working with me went down there the night before, and he brung the gun back. The boy’s name is John Hall. We were going to the timber, and I said to tell Jim Pollard to send me his shotgun, as we were going to | kill some squirrels. This man’s name was James Pollard. The boy brought the pistol by mistake, and I laid it up on the shelf, and told him he had brung the wrong gun. I started to the timber that morning before the shooting. I had got right at Tolbert’s, about a mile away. I saw his hand, Grant, out about the lot. I did not talk to him. The boy told me before he left he could get the wood without me, and I was aiming to put out some onions, and I turned back to put them out. I went in the back door. I suspicioned something when I got near the house, and I went on around to the back. The children were all down the road apiece. I have three children. They were all down the road. There was nobody about the house. I went in at the back door. There are three rooms in the house. When I first got to the house, I went into the shed room on the west side of both of the other rooms, and saw James Pollard and my wife on the bed in the south room. There was a door leading into that room from the shed room, and another door leading from the shed room into the north room. I went into the north room and got the two pistols off of the shelf. Then came back to the door leading from the shed room to the south room, and shot my wife in the top of the head first, while she was on the bed. I shot him two or three times in the face before he could get off the bed. He fell right at the door near the stove. This door leads into the north room from the south room. I know I shot after he fell because he was scuffling and trying to get up.

My wife jumped up off the bed and ran out at the same door through the north room by which James Pollard fell. James and my wife were cousins. I had been suspicious of my wife and James about two or three weeks. Before that time I never thought anything was wrong with them. I have seen them together several times before this. I never saw them on the bed before, but I came up on them out in the crib together before. ‘X never did catch them in the act before yesterday. X have seen her doing the same thing with others. I have caught her in the bed with a fellow who worked on the Grinnan farm by the name of Ellis. That has been about two months ago. The other fellow was named Henry Berry. We have been separated. We separated about July. She said some of her folks were dead down East, and she left me and went down there, and then she came back, and then she went to Dallas and got sick, and sent for me, and I went and brung her back. We were separated about a month. My wife had on a long black coat and had on a dress. He had on, I believe, a Sunday coat, and a cotton striped jumper and a pair of overalls. His pants were unbuttoned. He had on a pair of overalls with a bih on. The bib was not down. He did not have time to button his pants. He was trying to get away.

“This statement was read over to me before signing, and I understand same, and it is correct. Sid Williams.
“Witnessed by “J. B. Warren
“E. P. Piper.
“On this 15th day of Eeb’y., 1913.
“All this happened yesterday morning, Eeb’y. 14th, 1913, on the Levy farm about three miles north or northeast of Terrell.
“Sid Williams.
“Witnessed by
“J. B. Warren,
“E. P. Piper.”

It is thus seen that in this confession appellant states he intentionally shot his wife while in the act of copulation with James Pollard. If tliis is true, this would be justifiable homicide, under article 1102 of the Penal Code. It will be noticed in the charge above copied it is stated, if appellant shot at Pollard and accidentally struck his wife, he should be acquitted. It is true that on the trial of the case appellant testified that he shot his wife accidentally while shooting at Pollard, yet the state had introduced this confession of appellant, and the issues made by it should have been submitted to the jury, and, because this was not done, we concur in a reversal of the case, but we do not agree to the statement of the case as made in the opinion reversing the case, nor that any other error is presented by the record. It would serve no useful purpose for us to state the record as we view it, for it is filed here.