author: MORROW, J.

text:
    ANDERSON v. STATE.
    (No. 4915.)
    (Court of Criminal Appeals of Texas.
    April 10, 1918.)
    1. Criminal Law 4&wkey;419, 420(10) — Hearsay EVIDENCE.
    In a prosecution for murder, testimony of deceased’s wife that, on the day of the killing, an eyewitn'ess told her that defendant had killed her husband and “that we tried to get him not to do it,” held hearsay and improperly admitted.
    2. Witnesses <&wkey;240(2) — Examination — Leading Questions.
    It is within the sound discretion of the trial judge to permit leading questions to be asked a hostile, unwilling, or reluctant witness.
    3. Witnesses <&wkey;240(5) — Examination — Leading Questions — Suggestion in Aid oe Recollection.
    Where the district attorney, in examining one of his adult witnesses, reminded witness by leading question of the contents of a written statement voluntarily made by witness before the trial, and thereby elicits damaging testimony, the examination was improper.
    4. Criminal Law <&wkey;05G(9) — Trial — Conduct of Court in Examining Witness.
    The court’s conduct, during a prosecution for murder, in examining one of the witnesses for the state and eliciting damaging testimony by reminding witness of the contents of a written statement witness had made, tending to lead jury to think court considered defendant guilty, was improper under the statute.
    Appeal from District Court, Taylor County; Joe Burkett, Judge.
    R. D. Anderson was convicted of manslaughter, and he appeals.
    Reversed.
    Harry Tom King, of Abilene, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant under indictment for murder, was convicted of manslaughter.

According to the state’s theory, appellant shot and killed deceased under circumstances which constituted' murder. Appellant claims to have acted in self-defense. One of his eyewitnesses was his stepson, Emmett Burns. This witness was present and testified in substance that deceased came to the restaurant where he was killed armed with a pistol, that appellant at 'the time immediately before the shooting was behind a partition doorjamb with his head sticking out and with a target rifle in his hand which was pointed down toward the floor; that after some words were exchanged deceased fired two shots at appellant while he was in the position described; and that appellant fired ope shot which witness did not see but heard, he at the time being in the act of leaving the house. Appellant’s testimony was substantially to the same effect, and he was corroborated by some other testimony.

The wife of deceased, introduced as a witness for the state, testified that on the morning the homicide occurred, after it took place some distance from the scene thereof, in the absence of appellant she had a conversation with the witness Burns in which he told her that appellant shot deceased, and further said “that we tried to get him not to do it.” It is not claimed that this is res gestae. The court in explaining the bill says:

“Defendant claimed self-defense, and Emmett Bums’ testimony also tended to show self-defense on the trial. This was admitted to refute that theory.”

The objection that the evidence is hearsay is, we think, well taken. It might have been used to impeach the witness Burns if the predicate therefor had been laid. This, however, was not done. If it had been used as impeaching testimony, the court would have been required to limit it to that purpose, namely, as bearing upon the credibility of Burns. It appears to have been used as original testimony, contradicting the testimony of Burns and the theory of self-defense. The testimony of Burns was not only material upon this issue and in conflict with the statement proved and attributed to him, but it tended to contradict other witnesses who supported the appellant’s theory. We regard its admission as prejudicial error.

Some hours before the homicide took place the deceased and appellant had a quarrel and were about to fight, and were separated by friends, among them a witness by the name of Thomas. This witness was a negro man and brother-in-law of deceased. He was not present at the time the homicide took place. He was called by the state to relate the incidents of the prior encounter. It seems that some time after the homicide*, and before the trial, this witness had made a statement in writing in the presence of one described as Mr. Graham, in which writing he detailed his version of the first difficulty; and it appears that in this writing there were statements of the witness in which he claimed that immediately after the prior encounter appellant had made threats to kill deceased. In giving his testimony he failed to recount this fact; that is, he failed to testify to the threats and said in effect that he recollected nothing that was said by the appellant on the occasion mentioned. The state’s attorney and the trial judge, on his direct examination, interrogated him, asking him certain leading questions, after proving by him that he had made the written statement mentioned. As we understand, the statement was produced during this examination which was in the presence of the jury, and alternately the district attorney and the judge used it in interrogating the witness. The bill states that the writing was read, but it does not appear copied in the bill or the statement of facts. Responding to this method of examination, and having his memory thus refreshed, the witness said that he did remember some things that the appellant said; among others, that he begged for his gun and that, when it was refused him, said he had another gun at home, and that Gum-mings, deceased, had to go home, that he (appellant) would get him. He said to Cummings, “X will get you.” After the cross-examination by appellant’s counsel, and after state’s counsel had conducted his redirect examination, the bill states that the following took place:

“The court trying the case again took the witness from the district attorney and read from a paper held in his hand, and asked witness if he remembered this statement: ‘Before he left the house he said he would kill Cummings if it was the last thing hh ever done.’ All of this in the presence of the jury. And the court thereupon asked the witness if he had made this statement to Mr. Graham, and the witness says: ‘I remember that. I am sure that was said.’ The court then read as follows from the paper: ‘When he came back, he went in behind us, and he still said he was going to kill Cummings.’ The court asked the witness if that was so, and the witness replied, ‘That is so.’ And the witness thereupon further testified in response to the court: ‘X did not testify to that while ago because I did not think of it. I think that was everything that was said. That is all I can remember. That is why I did not tell you any more. I just told you all I could remember.’ ”

Various objections are urged to this proceeding. The court qualifies the bill with the statement that the witness appeared to he confused and excited and did not seem to understand many of the simplest questions. It has often been declared within the sound discretion of the trial judge to permit leading questions to be asked to a hostile, unwilling, or reluctant witness. Mann v. State, 44 Tex. 642, and other cases in Branch’s An. P. C. § 158. This discretion has been held to cover a case in which a child laboring under excitement was asked such questions. Campbell v. State, 62 Tex. Cr. R. 563, 138 S. W. 607. There doubtless would arise other instances in which the application of the principle would be justified. In the present case the witness was a grown-up man, was related to the deceased, and made a written statement in advance which apparently was voluntarily made and which was in possession of the state. He does not therefore seem to have been hostile, unwilling, or reluctant. It is doubtful whether the rule should be enlarged to embrace an instance where a full-grown man, not suffering from any shown disability, who claimed that he was an eyewitness to a recent transaction, and who was unable to relate the incidents upon the trial in the same manner or in the same substance that he had previously related them, and who in his efforts to do so became confused and excited. If it be conceded that the circumstances were such as to authorize leading questions, the question occurs whether, in permitting the proceeding that is disclosed by the record in the present instance, the court was exercising sound judicial discretion. The effect of the proceeding was to get before the jury the fact that the witness soon after the homicide signed a written statement in which he had asserted that appellant had made serious threats against the life of deceased, and to induce him by leading questions, prompted by this written statement, to testify that these threats were in fact made. As disclosed in the bill, the effect of his testimony, before this proceeding, was that he had seen the previous difficulty but remembered no threats.

In Spangler v. State, 41 Tex. Cr. R. 432, 55 S. W. 329, the court dealing with a similar question used the following language:

“Charley Spangler was a witness for the state, and he had testified to no fact detrimental to the state, and the state would not have been authorized to contradict him by showing that he had testified to an additional fact before the grand jury. It could only contradict him where he had testified to some affirmative fact detrimental to the state, and then only where the attorney for the state had been taken by surprise at the testimony of his own witness. So far as we are able to discover from the bill here, the witness did not remember the additional fact; and the state was permitted, over the objections of appellant, to parade the witness’ testimony, taken in the grand jury room, before the petit jury trying the case.”

This casé was reversed on other grounds, the court condemning the practice, but stating that,' inasmuch as the witness did give the testimony when his memory was refreshed in the manner stated, it would not be held reversible.

In Brown’s Case, 42 Tex. Cr. R. 185, 58 S. W. 133, the- court expressed itself with reference to a similar question as follows:

“The examination of the witness Melvin Cude was unauthorized. Testimony taken before the grand jury is admissible solely where the truth or falsity of the witness is in question. In Spangler’s Case, 41 Tex. Cr. R. 424 [55 S. W. 326], while we held it was not reversible error to use the grand jury testimony for the /urpose of refreshing a witness’ recollection, still the method pursued in that case was improper. In this case, as is well said by counsel in their brief: ‘If the state used the paper for the purpose of impeaching its own witness, this Was improper. If counsel used the paper for the purpose of testing the memory of the witness with the view of impeaching his testimony, this was improper. If he used the paper to intimidate the witness, this was improper. If he used the paper as the basis of the cross-examination of his own witness, yet refused the use of the paper to the defendant and his counsel, this was improper.’ Evidently the paper in question was used for some or all of these purposes.”

Both of these cases relate to testimony taken before the grand jury to the use of which there was a particular objection. See Wisdom v. State, 42 Tex. Cr. R. 582, 61 S. W. 926. However, in so far as they illustrate the dealing with a witness by the’party offering and bringing before the jury the statements made out of court corroborating, where he is not impeached, and the use of such statements to contradict or intimidate him where he has not given damaging testimony against the party offering it, the principle involved is not distinguishable from that involved in the case mentioned.

In Carter v. State, 170 S. W. 742, the court says: “State’s counsel should never by his questions suggest an answer to a. friendly witness.” The law permits the trial judge to interrogate a witness under certain circumstances, but the law forbids his mailing ■ comments upon the weight of the evidence. In Vernon’s C. C. P. p. 468, note 03, in the text it is said:

VA charge is erroneous which in any way, and to any degree, conveys to the jujw the impression of the judge on any of the evidence” — citing Gibbs v. State, 1 Tex. App. 13, and other cases.

The law contemplates that the trial judge shall maintain an attitude of impartiality throughout the trial, and it has been often held that his views or impressions of the weight of the evidence or upon the issues in the case may be conveyed to the jury as effectively by other means as by charge of the court. This is illustrated by the opinion of this court written by Judge Hurt in Kirk v. State, 35 Tex. Cr. R. 224, 32 S. W. 1045, and in Lawson v. State, 32 S. W. 895; Reason v. State, 30 S. W. 780; Crook v. State, 27 Tex. App. 198, 11 S. W. 444; Wilson v. State, 17 Tex. App. 525; Simmons v. State, 55 Tex. Cr. R. 446, 117 S. W. 141. The fact that the part taken by the court, whether or not inadvertently or with the best intentions, may have impressed the jury in regard to his views of the evidence, is none the less harmful.

In the present case it appears that, after the cross-examination and after the prosecuting attorney had pursued the methods described in examining his own witness, the court read from the paper, which contained the witness’ statements out of court, the following: “Before he left the house he said he would kill Cummings if it was the last thing he ever done.” The judge then asked the witness if he had made that statement to Mr. Graham. From the same paper, the bill shows, he read in the presence of the jury the following: “When he came back he went in behind us and he still said he was going to kill Cummings.” The court asked the witness if that was so and the witness replied that it was.

It is not unusual that a witness is allowed to examine a writing to refresh his memory (Branch’s Ann. P. C. § 160); but that does not mean that a party may read to his own .witness in the hearing of the jury his /written statement made out of court, and prove by him that he made the statement and that it states the facts. This is subject to the criticism that it is a method of leading one’s own witness and corroborating him before he is impeached by hearsay, in proving that he made the statement out of court.

The case of Sparks v. State, 59 Ala. 82, was one in which, after the witness was excused by the state the defendant failing to cross-examine him, the presiding judge beckoned to the witness and had a whispered conversation with him. The court then asked the witness, who had testified to the reputation of one of the parties, if he knew of any circumstance illustrating the character of the defendant. The court held this proceeding erroneous, its holding based partly upon the inadmissibility of the evidence thus elicited, but to a great extent to its criticism of the act of the trial judge, saying:

“We would hesitate to affirm any judgment of conviction, supported by evidence elicited from a witness, on an examination by the presiding judge, after a private inquiry of the witness, by the judge, as to his knowledge of the facts of the case. Especially if as in this case, the witness had been examined in chief for the state,_ and the defendant had declined to cross-examine him, before the inquiries and examination of the judge. We do not impute, or intend to impute, intentional impropriety to the presiding judge. We are compelled to deal with facts as they are presented bv the record.”

We have statutes providing that a trial judge shall not express his opinion or comment upon the weight of the evidence or its bearing on the case or make any remark calculated to give the jury his opinion of the case. See Simmons v. State, 55 Tex. Cr. R. 445, 117 S. W. 141, and the statutes referred to. In the state of Washington there is a constitutional provision to the same effect. The case of State v. Crotts, 22 Wash. 245, 60 Pac. 403, was a ease of homicide in which the defense was self-defense. The court interrupted the interrogation of the witness and asked several leading questions tending to elicit from the witness facts favorable to the state, negativing the defendant’s theory of self-defense. Reversing the ease because of the impropriety of these proceedings, the court makes the following comment:

“There are different ways by which a judge may comment upon the testimony, within the meaning of the Constitution referred to above. The object of the constitutional provision, doubtless, is to prevent the jury from being influenced by knowledge conveyed to it by the court of what the court’s opinion is on the testimony submitted. The Constitution has made the jury the sole judge of the weight of the testimony and of the credibility of the witnesses, and it is a fact well and universally known by courts and practitioners that the ordinary'juror is always anxious to obtain the opinion of the court on matters which are submitted to his discretion, and that such opinion, if known to the juror, had a great influence upon the final determination of the issues. This information can be conveyed as readily to the jury by leading questions asked of them, and the manner of the judge in asking such questions as by a direct comment upon the testimony in the charge to the jury.”

In the instant case the eyewitness testified to circumstances of fact showing self-defense. The state relied mainly upon physical facts and circumstances to show that the homicide ,was an assassination, or at least that it was not justifiable on the theory of self-defense. There was evidence that after the first difficulty between deceased and appellant, which occurred about 2 o’clock in the morning, during' which appellant’s pistol was taken away from him, appellant had gotten possession of a target rifle with which he killed deceased, and that he had in the restaurant where deceased accosted him immediately before the homicide. To negative the theory of self-defense and show malice and premeditation it was important that the state should prove that after the previous difficulty appellant had threatened to kill deceased. The state was represented by a skillful and learned attorney, who, under the sanction of .the court, had fully examined the state’s ' witness in question. The conduct of the trial judge in entering into the examination, reading from the statement which the witness had previously made, the very fact that that whs most important to the state to prove, namely, that the threat had been made by appellant, and asking the .witness if he had made that statement and if it was true, was, we think, calculated to impress the jury with the view that the court favored the state. The case of Dooney v. People, 81 Ill. App. 370, was one in which the court examined a witness upon the issue of reputation. The court says: “It was, at least, a debatable question whether some of these interrogatories should not have been modified.” The court, criticizing and holding improper the proceeding, said:

“We concede to every trial judge a wide latitude in protecting those who are defenseless from improper proof and from assaults by opposing counsel, and also in putting questions which will bring out the truth upon points not rendered sufficiently clear by the examination of counsel; but great care should be taken to exercise this power only when necessary, and then in such a way as not to indicate any bias of the court for or against either party, and so as not to create any apprehension in the mind of either party, or of counsel, that the court is taking sides before the jury. The subject is fully discussed, and the power of the court and the limitations thereon stated, in Dunn v. People, 172 Ill. 586 [50 N. E. 137], and page 595 of that opinion is fairly applicable to this case.”

In our judgment the bill of exceptions shows that the trial judge fell into error in permitting the state’s attorney to cross-examine the state’s witness in the manner indicated by the bill and in his own cross-examination of the witness.

For these errors and that heretofore pointed out, the judgment of the lower court is reversed, and the cause remanded.

PRENDERGAST, X, absent.
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source: Caselaw Access Project

author: DAVIDSON, P. J.

license: Public Domain

text:
    RIDDICK v. STATE.
    (No. 4958.)
    (Court of Criminal Appeals of Texas.
    April 17, 1918.)
    1. Ijaeceny &wkey;>71(l) — Intent — Drunkenness.
    Intent being necessary in larceny, the question thereof, raised by the evidence, should he submitted, notwithstanding defendant’s drunkenness.
    2. Larceny <&wkey;44 — Inteno^-Evidence.
    As bearing .on defendant’s intent, evidence that, shortly after it was claimed he took a watch from D., he came into a café with the watch in his hand, asking about D., and stating that the watch belonged to D., and that he wanted to find him for the purpose of returning it, is admissible.
    Appeal from District Court, Bowie County; H. F. O’Neal, Judge.
    W. B. Riddick was convicted of theft from the person, and appeals.
    Reversed and remanded.
    Joe Hughes and Mahaft'ey, Keeney & Dalby, all of Texarkana, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of theft from the person and given two years in the penitentiary.

The state’s case, in a sense, is one of circumstantial evidence; yet the facts make the taking by appellant, if it occurred, so close to the transaction that under the decisions it may not have been necessary to charge upon that issue. The state’s witness, who they nicknamed “Dad,” states he was leaning against one of the pillars of the bank, and appellant came to him in a drunken condition, and leaned up against him for a moment or so, and went away; that directly after appellant departed he discovered that his watch was taken. He fixes the time as being between 3:35 and 3:20 o’clock in the evening, by circumstances indicating that he could hardly be mistaken as to the time. Just after 3:30 o’clock a witness testifies that appellant, in a drunken condition, was in his café and had a watch and some money in his hand. This watch is perhaps sufficiently identified as that taken from the witness “Dad.” Appellant testified that he was drunk, as did the other witnesses, and that if he took the watch from the prosecuting witness he was not aware of it, and had no recollection of it. In fact, he testified he had no recollection of seeing the prosecuting witness the evening the watch was taken. Shortly afterward he was found in a house in the town where this offense occurred in a drunken stupor and asleep, and was arrested by the officers. The watch was taken from appellant by his brother shortly after the prosecuting witness lost it, and by the brother pawned for the sum of $5.- It is shown by appellant and the brother both that this was not authorized by the defendant; appellant claiming, in fact, he had no knowledge of it. The court charged the jury with reference to temporary insanity produced by the voluntary recent use of intoxicants, relegating this to mitigation of punishment.

Appellant asked a special charge, requesting the court to instruct the jury with reference to fraudulent intent, and that, if he had no fraudulent intent at the time of the taking, even if he did take the watch, then the jury should acquit. This question was raised by the testimony, and should have been submitted to the jury; and this, whether he was drunk or sober. Intent is necessary in theft, and a charge should be given when it is an issue.

There is a bill of exceptions reserved to tlie ruling of the court rejecting testimony. By the owner of the café appellant proposed to prove that, when he came, in the café with the money and watch in his hand, he was asking about the prosecuting witness, making a statement to the effect that the watch he had belonged to prosecuting witness, and he wanted to find him for the purpose of returning it. This was excluded, and we think erroneously. The fact that he had the watch, and that the state relied, upon the fact he had taken it from prosecuting witness, it occurs to us, should have admitted the testimony of his handling the watch after taking it, and what he was doing with it, as bearing upon his intent.

Eor the reasons indicated, the judgment will be reversed, and the cause remanded.

PRENDERGAST, J., absent.
      <&wkey;For other cases see same topic ana KBY-NUMBBK in all Key-Numbered Digests and Indexes


text:
    PRICE v. STATE.
    (No. 4992.)
    (Court of Criminal Appeals of Texas.
    April 17, 1918.)
    1. Criminal Law &wkey;>1090(l) — Appeal—Ab- . sence oe Bill of Exijeptions and Statement of Pacts.
    In the absence of bill of exception and statement of facts, t^.e only question raised is the sufficiency of the indictment.
    2. Intoxicating Liquors <&wkey;205(2) — Indictment — County Option Election.
    In a prosecution for selling liquor in dry territory, an allegation in the indictment that the commissioner’s court passed and published an order declaring the result of the local option election and prohibiting the sale of intoxicating liquor in the county, and thereupon such order was published for- the time and in the manner required by law, held sufficient, i
    3. Intoxicating Liquors <&wkey;222 — Indictment-Negativing Defenses.
    An indictment for selling_ liquors, having alleged the adoption of prohibition at a local option election held on a date more than two years prior to the date of the offense, need not allege that prohibition has not been removed by a subsequent election.
    Appeal from District Court, Cooke County; C. E. Spencer, Judge.
    Kirby Price was convicted of the offense of selling intoxicating liquors in a district where it was prohibited by law, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State. ,
   MORROW, J.

Appellant was convicted for the offense of selling intoxicating liquors in a district where it was prohibited by law.

In the absence of bill of exceptions and statement of facts, the only question raised for review is that involving the insufficiency of the indictment. The criticism involves the proposition that the indictment is insufficient in the manner of the alleged publication of the result of the local option election. The terms used are as follows:

“And thereupon the commissioners’ court of said county did pass and publish an order declaring the result of said election and prohibiting the sale of intoxicating liquors in said county, and thereupon said order was published for the time and in the manner required by law.”

Practically the same allegations were held sufficient by this court in an opinion by Judge Ramsey in Watson v. State, 52 Tex. Cr. R. 551, 107 S. W. 544, citing Key v. State, 37 Tex. Cr. R. 77, 38 S. W. 773. The Watson Case has been frequently followed, and supports the action of the trial court in overruling the motion to quash.

The indictment charges the election at which the sale of intoxicating liquors was prohibited to have taken place May 28, 1910. The motion to quash involves the proposition that the date of the alleged offense was more than two years subsequent to the election mentioned, and that it is .incomplete in failing to show in some form that prohibition is still in force. Having been put in effect by the election previously, it would remain in effect unless abrogated by a subsequent election. The law does not require that the indictment shall negative the fact that there had been a subsequent election removing the prohibition. Branch’s An. P. C. § 1233; Vernon’s P. C. pp. 311, 312; Timmins v. State, 199 S. W. 1107, and cases cited.

The judgment of. the lower court is affirmed.

PRENDERGAST, J„ absent.


text:
    PRICE v. STATE.
    (No. 4991.)
    (Court of Criminal Appeals of Texas.
    April 17, 1918.)
    1. Intoxicating Liquors <&wkey;223(6) — Indictment— Proof.
    An indictment charging selling liquor in dry territory to four persons named can be supported only by evidence that the sale was made to all four.
    2. Criminal Law <&wkey; 1186 (4) — Instructions —Harmless Error.
    In a prosecution for selling liquors in dry territory, an instruction that conviction could be had upon proving sale to any one of the four named in the indictment, though error, was not ground for reversal, where the evidence clearly proved sale to all four; such error being harmless under Code Cr. Proc. 1911, art. 743.
    Appeal from District Court, Cooke County ; Chas. E. Spencer, Judge.
    Kirby Price was convicted of selling intoxicating liquors in a district where it was prohibited by law, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

This is a companion case to Kirby Price v. State of Texas, 202 S. W. 948 (No. 4992). The indictment is in substance like the one held sufficient in that case on the authorities of Watson v. State, 52 Tex. Cr. R. 551, 107 S. W. 544, and cases cited in Timmins v. State, 199 S. W. 1107.

The offense is alleged to have been committed by the sale of intoxicating liquor on the 18th day of February, 1917, to Artie Holcomb, Otis Burson, Clarence Wright, and Henry Sloan. Appellant’s bill of exceptions complains that the court’s charge authorized a conviction if the sale of liquor was unlawfully made to all or either of the parties named as purchasers in the indictment, and of the refusal of a special charge instructing the jury that it would be authorized only in the event the sale was made to all of them. The state’s testimony shows that if the sale was made it was made to all the parties named. Their testimony is to the effect that they each chipped in 50 cents and went together and purchased a bottle of whisky from appellant.

Clarence Wright testified that he, Otis Bur-son, Artie Holcomb, and Henry Sloan bought a quart of whisky from appellant for $2. He said:

“I think it was 50 cents that I put in. We all went together; we were all four present during the transaction. I don’t know which one of us gave him the money.”

Otis Burson gave in substance the same testimony. Artie Holcomb said:

“All four of us were there at the time. We gave him the money and got some whisky.”

Sloan’s testimony was to the effect that all the parties named- in the indictment were interested and got the whisky together, but was unable to identify the appellant definitely as the person from whom he bought. Appellant testified and denied making the sale at all.

The court’s charge was not correct. The indictment having charged that the sale was made to four persons, naming them, it was essential that the proof should agree with the allegation, and conviction could not be had under this indictment upon proof that the sale was made to one of the parties named. This has been held in a number of cases. Sessions v. State, 98 S. W. 243; Jones v. State, 76 Tex. Cr. R. 239, 174 S. W. 349; O’Shennessey v. State, 49 Tex. Cr. R. 600, 96 S. W. 790; Tippit v. State, 53 Tex. Cr. R. 180, 109 S. W. 190; Arnold v. State, 47 Tex. Cr. R. 556, 85 S. W. 18.

The evidence, however, is undisputed that the sale if made by appellant was made tó all four parties named in the indictment; that they were all together, all interested in the purchase, each furnishing their pro rata part of the money. This being true, it appears that under article 743, C. C. P., which provides in substance that error not calculated to injure the rights of an accused will not authorize reversal, the error of the court would be classed as harmless. Robinson v. State, 37 Tex. Cr. R. 195, 39 S. W. 107; Wimberley v. State, 60 Tex. Cr. R. 65, 130 S. W. 1002; Anthony v. State, 62 Tex. Cr. R. 138, 136 S. W. 1097; Creen v. State, 62 Tex. Cr. R. 345, 137 S. W. 126; Williams v. State, 65 Tex. Cr. R. 193, 144 S. W. 622; Clay v. State, 65 Tex. Cr. R. 590, 146 S. W. 166; Summers v. State, 66 Tex. Cr. R. 551, 148 S. W. 774; Johnson v. State, 67 Tex. Cr. K. 441, 149 S. W. 165; Lane v. State, 69 Tex. Cr. R. 65, 152 S. W. 897; Carey v. State, 74 Tex. Cr. R. 112, 167 S. W. 366; Vernon’s C. C. P. pp. 507, 508, and cases cited.

The judgment of the lower court is affirmed.

PRENDERGAST, J., absent.

       other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, J.

text:
    BARNES v. STATE.
    (No. 4828.)
    (Court of Criminal Appeals of Texas.
    March 13, 1918.
    Rehearing Denied May 1, 1918.)
    1. Criminal Law &wkey;>889 — “Informal Verdicts”— CORRECTION.
    Where the first count of an indictment charged accused with forgery of a check, the second charged him with passing such check, and the Court submitted the second count only to the jurv. which returned him guilty as “charged in the first count,” it was not error to send the verdict back for correction by erasing the word “first” and substituting the word “second”; such verdict being an informal one capable of correction under Code Cr. Proc. 1911, arts. 773, 774, providing that, if the jury find an informal verdict, their attention shall be called to it, and with their consent the verdict may, under the direction of the court, be reduced to the proper form.
    2. Forgery &wkey;>44(3) — Passing Forged INSTRUMENT — EVIDEN CEf — SUFFICIEN OY.
    In a prosecution for passing forged check, evidence held sufficient to sustain a finding that defendant was the person who passed the check.
    Appeal from Criminal District Court, Williamson County; James R. Hamilton, Judge.
    Ed Barnes was convicted of passing a forged check, and he appeals.
    Affirmed.
    J. F. Taulbee, of Georgetown, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

The indictment herein is in two counts. The first charges appellant with the forgery of a check for $23.50; the second so charges him with passing that forged check on Ray Purl on or about July 19th. There wag no question as to the validity of either of these counts. The state abandoned the first, and the court plainly told the jury so in his charge.' The court did not submit the first to the jury for a finding at all, but submitted the second only.

After considering the case the jury returned into court and stated they had agreed upon a verdict, which was passed up to the court. The court saw that it found him guilty “as charged in the first count,” and assessed his punishment at two years. The court thereupon refused to receive the verdict, and passed it back to the jury with the statement that the defendant was not cn trial for forgery as set out in the first count, but was on trial for passing a forged instrument as set out in the second count. The verdict was then corrected by the jury in the box, all concurring, by erasing “first” and writing “second” before the word count. The verdict was then received by the court in open court. No objections were made or exceptions taken at the time to the action of the court or jury in making said change. Appellant has a bill to the overruling of his motion for a new trial on account of what occurred about the verdict, claiming that the jury considered in their retirement only the first count. The court, in approving the bill, qualified it by stating substantially what is stated above as to how the verdict was returned, corrected, received, etc. He also further qualified the bill by stating that no evidence was introduced to support said motion.

The statute prescribes (articles 773, 774, O. C. P.) that if the jury find an informal verdict their attention shall be called to it, and with their consent the verdict'may, under the direction of the court, be reduced to the proper form. If the jury refuse to have their verdict altered, they shall again retire to their room to deliberate, unless it manifestly appears that tire verdict is intended as an acquittal. Evidently this jury by the verdict as first brought in did not intend to acquit appellant, and appellant does not so contend or intimate. On the contrary, it is clear that they intended, as they did, to find him guilty, but made a mistake in stating that it was the first instead of the second count. Under the circumstances we think this was an informal verdict, and was properly corrected and assented to by the jury, and not objected to at the time by the appellant.

Mr. Purl was a grocery merchant in Georgetown in July. He swore:

“I know the defendant. So far as I know, the first time I ever saw him was something like the 18th. of July of this year (1917). I saw him then in my place of business. No one was with him. I - did not know him at that time. When he came there he purchased some merchandise.” The merchandise was two pieces of bacon and another article, amounting to a few dollars. When he went to pay for the merchandise he handed Mr. Purl a check. The said check as copied in the indictment was then produced, identified and introduced in evidence.

Mr. Purl- further swore:

“He paid for the merchandise with this check, and I gave him the difference in money, * * * around $20.” He did not see the defendant any more that day that he knew of.

He further swore:

“I know by sight the man who presented this check to me for payment. He is right over there (indicating the defendant). I ■ think I could not be mistaken.”

He further swore:

He (the witness) never got any money on said check; that when talking to defendant at the time of said transaction with him he told him he (appellant) came from Granger, and when the check was returned to him he went to Granger with Mr. Allen to look for him. “I was looking for the man that gave me the check. I found him in the pool hall at Granger. That was in the neighborhood of a month after the check was passed on me.” That there were some half dozen other people in the pool hall at the time.

The check was on a bank at Granger. Mr. Purl put the check in his bank at Georgetown for collection, and in the course of a few days it was returned unpaid. The check purported to be signed by Emmit Hurst, and was payable to Fritz Murray.

On cross-examination Mr. Purl said:

He did not know the kind of clothes appellant had on when he passed that check on vhim, but something like he was then dressed. He could not tell what kind ( ’ a hat he had on. “I can’t say for sure what kind of clothes he had on.”

He further swore that this transaction occurred after the middle of the evening; that his deposit slip at the bank where he deposited this check was dated July 19th, and in the ordinary run of business he took the check to the bank the day following after he received it. He further said:

“I don’t remember what color of clothes he wore or hat, but I do remember him being the one.”

On redirect examination he swore:

“I did ask him who he was — I asked the man, Was he Fritz Murray? He said, ‘Yes, sir.’ I said, ‘You are the man?’ He said, ‘Yes.’ ”

Mr. Hurst swore that he never signed said check or authorized any one else to sign his name thereto.

The testimony of Mr. Purl was amply sufficient to establish that appellant was the person who passed said cheek upon him and got his merchandise and money thereon. The jury evidently believed him, as they had the right to do.

Appellant himself testified that he lived at Granger and had lived there for many years; that he was in Georgetown on July 16th, but was not in Mr. Purl’s store that or any other day, and he denied that he was the person who passed said check on Mr. Purl and had the transactions with him as testified to by Mr. Purl. He swore he was in Granger on July 17th, 18th, 19th, and thereafter. He introduced another witness who swore that he was with him in Georgetown on July 16th, and that they left there that evening for Granger, and that appellant did not go into Mr. Purl’s store while he was with him in Georgetown at any time. He introduced another witness who swore that appellant was in Granger about 2 or 2:30 o’clock on the evening of the 18th.

The evidence of appellant and of his witnesses, if believed, was amply sufficient to have justified the jury to believe that he was not the man who passed said check on Mr. Purl, and was not in Georgetown at that time but was in Granger. Evidently the jury did not believe him and his witnesses on this point.

The charge presents every issue properly to the jury. There was no complaint of it then, and none now. Of course, it required the jury to believe beyond a reasonable doubt that appellant knowingly passed that forged instrument on Mr. Purl before they could convict him, and unless they so believed beyond a reasonable doubt to acquit him. He also gave a correct charge on alibi in his favor, and in addition charged the presumption of innocence and reasonable doubt.

The law expressly makes the jury the exclusive judges of the credibility of the witnesses and the weight to be given to their testimony. Appellant in every way had a fair and impartial trial. Under the circumstances we are not authorized to disturb the verdict of the jury, and therefore the judgment will he affirmed.
      <§=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    ARCE et al. v. STATE.
    (No. 4314.)
    (Court of Criminal Appeals of Texas.
    April 17, 1918.)
    1. CRIMINAL Law <&wkey;>304(2) — Evidence—Judicial Notice — ‘Matters oe History.
    The courts know as a matter of history of current events attending the recent trouble between the United States and Mexico, wherein a column of troops under Gen. Pershing invaded that country and incidental fights and battles occurred in connection with the invasion.
    2. Criminal Law &wkey;304(2) — Evidence—Judicial Notice — Matters of History.
    It is a question for judicial cognizance and knowledge that the battle at San Ygnacio -which occurred during the recent trouble between this country and Mexico was never disavowed by the Mexican de facto government.
    3. War &wkey;>l — State of “War” — Battle on Mexican Border.
    The battle at San Ygnacio between the United States troops and expeditionary forces of Mexico commanded by officers of the Carranza de facto government in which soldiers were killed, wounded, and captured, constituted a state of “war,” though it be an incomplete state.
    [Ed. Note. — For othf"’ definitions, see Words and Phrases, First an Second Series, War.]

    4. Criminal 'Law <&wkey;95 — Jurisdiction-Punishment of Foreign Soldiers — Mexicans Fighting United States Troops.
    The courts of this state have no jurisdiction to punish Mexican soldiers killing a United States soldier incidental to a battle in Texas between Mexican and United States troops during a state of war between this country and Mexico, but the authority to punish, whatever may have been their rights, is within the jurisdiction of the federal government.
    Appeal from District Court, Webb County; J. F. Mullally, Judge.
    Jose Antonio Arce and others were convicted of murder, and they appeal.
    Reversed and remanded.
    C. M. Henry, George & Townes, and Greer & Hamilton, all of Laredo, for appellants. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Jose Antonio Arce, Vi-cinte Lira, Pablino Sanchez, Jesus Cerda, Isabel de los Santos, and Fredrico Gutierrez Zapata were charged with killing William Oberlies. Four of these .defendants were placed upon trial for the homicide, namely, Arce, Lira, Sanchez, and Cerda, and given the death penalty for the killing of Oberlies, who, it seems, was a corporal in the United States federal army.

There are many interesting questions presented for revision in various ways. The motion to change the venue, application for continuance, exception to the jury, and incidental matters will not be discussed. They may not arise upon another trial if one should occur, and, should they, will be presented in a different light and from a different view perhaps, as set forth in the record.

A condensed substance of the facts will show that during the recent trouble on the Rio Grande and in Mexico there was trouble between the United States and Mexico. We know, as a matter of history, of the current events attending this trouble, that the United States invaded Mexico with a column of troops under Gen. Pershing, and there may have been other like occurrences on the Rio Grande by the United States troops. It is not the purpose of this opinion to go into the history of the trouble between the two countries and the incidental fights and battles that may have occurred in connection with those troubles. Suffice to say, they did occur, and under the authorities this brought about a condition of “war” between the two countries. It was not what the authorities may term a complete state of war, but rather in the nature of an incomplete state of war. There was no formal declaration of war as we understand the history of the times between the two countries, where a state of warfare was recognized as existing between the two countries. During these troubles, among other things that occurred was a force organized at Monterey by the direction and under the authority of the Carranza de facto government. It is shown by this record that, when this command was completed and the plan laid, it was done with the view of invading Texas and attacking some of the federal troops located just below Laredo at San Ygnacio. There was a company of cavalry of the regular army stationed at this point with trenches and other means incident to resistence from attack. These Mexican troops made an attack upon this troop of United States cavalry at night. On the night of the attack, another troop of United States cavalry reached the point where the first troop was camped, to spend the night en route to Zapata county, and when the fight came off^that night both troops were in action. Four or five United States soldiers were killed and nine or ten of the Mexicans. Three of the Mexicans and one that was wounded were captured. These were tried Tinder this indictment in the Texas state courts and on conviction given the death penalty. The evidence makes it clear that these Mexican troops were commanded by Carranza officers. One of these officers was killed during the fight who seemed to rank as a lieutenant colonel. The commanding officer of the Mexicans was De los Santos, who, it seems, was later captured by the forces of Villa and executed. His name was in this indictment, but he was never arrested. That a state of warfare existed between the two countries is not questioned. Brig. Gen. Enoch H. Orowder, Judge Advocate, U. S. A., has the following to say in an official opinion :

“It is thus apparent that under the law there need be no formal declaration of war, but that under the definition of Vattel a state of war exists so far as concerns the operations of the United States troops in Mexico by reason of the fact that the United States is prosecuting its rights by force of arms and in a manner in which warfare is usually conducted. The statutes which are operative only during a period of war have been interpreted as relating to a condition and not a theory. * * * I am therefore of the opinion that the actual conditions under which the field operations in Mexico are being conducted are those of actual war. That within the field of operations of the expeditionary force in Mexico, it is a time of war within the meaning of the fifth-eighth article of war.”

There is also, in connection with this record, in'the motion for new trial, exhibited to the court excerpts from a communication from the district attorney of Webb county to John L. Wroe, secretary to Gov. Ferguson, as follows:

“The jury returned the verdict of guilty and assessed the punishment of death. These four Mexican citizens testified under oath that they belonged to the Constitutionalist Army of Mexico; that the band that attacked San Ygnacio consisted of 75 men; and that they were publicly organized and equipped in Monterey and Jari-fa, with the full knowledge of the officers of the de facto government of Mexico. The recent trials in Webb county of the bandits who murdered our soldiers at San Ygnacio, the fact that they wore publicly organized and equipped.in Mexico, that they met and mingled with the forces and officers of the de facto government, that they were furnished transportation in three railroad cars from Monterey to Jarita, that it was widely proclaimed at Monterey that these bands were going to make hostile incursions into Texas, that men high in the councils of the de facto government were cognizant of the unlawful enterprise, and yet not a finger was raised by that government to frustrate the mission. I charge the de facto government with full responsibility for the recent raids committed in my district, and I charge that these raids were conducted with the knowledge and consent, if not the approbation, of the • de facto government.”

It might also be stated, in this comlection, that it is a question for judicial cognizance and knowledge that this battle at San Ygna-cio was never disavowed by the de facto government of Mexico. It seems also to be within accurate statement that the organization of these expeditionary forces attacking San Ygnacio was by and under the direction of Gen. Nafarrette, Gen. Fierros, Gen. De la Rosa, with Gol. Gavanas, Gol. Isabel de los Santos, Col. Oruz Ruis, and others, and these were officers of the Con-stitutionalist or de facto Carranza government. Col. Cruz Ruis was killed in the battle.

This, we think, was a state of warfare. See, in addition to what has been quoted from Bas v. Tingy, 4 Dall. 37, 1 L. Ed. 732-733, U. S. Supreme Court Reports, as follows:

“It may, I believe, be safely laid down that every contention by force, between two nations, in external matters, under the authority of their respectivo governments, is not only war, but public war.”

While the invasion of Mexico by Gen. Pershing’s column was not a public or complete war, or not preceded by a declaration of war against Mexico by the United States, it was an act of war, and under the definitions given by Gen. Crowder and the authorities generally it was technically and within the limited meaning of the word “war.” It was not made with the consent of the de facto government of Mexico, but rather in fact over the protest of that country. In the case of Montoya v. United States, 180 U. S. 261, 21 Sup. Ct. 358, 45 L. Ed. 521, it was said:

“To sustain a claim under this section, it is incumbent upon the claimant to prove that the Indians taking or destroying the property belonged' to a band, tribe, or nation in amity with the United States. The object of the act is evidently to compensate settlers for depredations committed by individual marauders belonging to a body which is then at peace with the government. If the depredation be committed by an organized company of men constituting a band in itself, acting independently of any other band or tribe, and carrying on hostilities against the United States, such acts may amount to a war for the consequence of which the government is not responsible under this act, or upon general principles of law. United States v. Pacific R. Co., 120 U. S. 227, 30 L. Ed. 634, 636, 7 Sup. Ct. 490.”

This extract is made from Preciat v. U. S., 67 U. S. (2 Black) 635, 17 L. Ed. 476:

“ ‘War’ has been well defined to be ‘that state in which a nation prosecutes its right by force.’ The parties belligerent in a public war are independent nations. But it is not necessary, to constitute war, that both parties should be acknowledged as independent nations or sov-, ereign states. A war may exist where one of the belligerents claims sovereign rights as against the other.”

The Montoya Case was a claim by a citizen against the United States for a depredation by an Indian band commanded by the Chief Victoria. Some of the troop of which Victoria was chief was friendly to the United States; many of them were not. Victoria organized a band of his own tribe and Indian warriors from other tribes and depredated upon the people of New Mexico and finally went into Old Mexico. There was a fight between the band o^ Victoria and United States troops. Tbe claim was made for a depredation made by Victoria and was held not valid because it was not brought within the terms of the law which makes the United States responsible only for depredations by trib'es friendly to the United States.

It occurs to the writer that, according to the principles laid down in these decisions and under the general rules with reference to warfare, the Mexican column that attacked the troops at San Ygnacio came within those rules, and that, if they were to be dealt with for crossing the river and fighting our troops, it should be done by the United States government and not by the Texas courts. Texas has no authority to declare war against Mexico nor create a state of war. This must be done by our general government at Washington by the special delegated authority in the Constitution of the United States. Whatever may have been the rights of these Mexicans, the authority to punish, the writer feels, is within the jurisdiction of the United States and not the courts of Texas. If there was a state of war between the two countries, actual and complete, or inchoate and incomplete, then it became an international or federal question and not a state matter.

It might be interesting but of no practical value to follow this matter with reference to some fighting that occurred in Mexico at the time Gen. Pershing’s column invaded that country in which some of our soldiers were killed and some captured. The principles above laid down, as far as our information goes, controlled the relation between the de facto government of Mexico and the United States with reference to that battle and our soldiers who were captured. They were not tried by the Mexican courts, but turned over to the United States, as we gather the history of that transaction. So from this viewpoint we are of the opinion that this judgment should be reversed.

We might also refer to the invasion .of Mexico by the United States army and navy at Vera Cruz under the command of Gen. Funston. Our soldiers, if captured, would have been subject to trial and punishment In Mexican courts under the same rules as their soldiers would in our courts.

There is another interesting question or two in the case which may be mentioned incidental to the other question. Gen. Mann was used as a witness, as were other federal officers, among them the two captains who commanded the two troops of cavalry on the night of the fight. From their testimony, a general statement may be made to the effect that these Mexican soldiers would be controlled by their officers in command and be obedient to them; that the command was organized- under the authority of the Carranza or de facto government of Mexico and were, in fact, a military command. By this testimony it seems that, wherever under such circumstances, the soldiers must obey the order of their superiors, and failure to do so would subject them to discipline which rates from minor punishment, to death, according to the rule which has been violated by those under authority. When a soldier is ordered to fight, it is his duty to do so, and he may forfeit his life on refusal so to do. If he deserts under certain circumstances, he may be shot or executed. These. Mexican soldiers were orderéd by their officers, commanded by the officers, headed by the officers to make the fight; the officers led them into the battle, and they fought. Some were killed; others escaped and fled. Some were wounded, one of whom was captured and is under sentence in this case. It seems while being tried he was suffering severely from a wound. One at least of the defendants claimed to have been forced to go into battle by his commanding officer. He did not desire to fight, but under the rules .of warfare if he deserted he would be tried and would be shot, or if he . disobeyed orders and failed to engage in the fight he might forfeit his life.

If the state courts had jurisdiction of these defendants, we are of opinion the conviction is erroneous.

From any viewpoint of this case, we are of opinion that this judgment should be reversed, and the cause remanded.

PRENDERGAST,’ J., absent.
      (SsoFor other cases see same topio and KEY-NUMBER In all Key-Numbered Blgests and Indexes -


text:
    ANDERSON v. STATE.
    (No. 4989.)
    (Court of Criminal Appeals of Texas.
    April 10, 1918.)
    1. Criminal Daw @=>1090(7) — Preserving Exceptions.
    Overruling application for a continuance will not be considered where a bill of exceptions was not reserved to the ruling.
    2. Criminal Daw @=>1092(11) — Bile op Exceptions — Approval by Trial Judge.
    A bill of exceptions not approved by the trial judge cannot be considered.
    3. Criminal Daw @=>1091(8) — Bill -of Exceptions— Sufficiency.
    Bill of exceptions as to counsel’s remarks with reference to accused’s failure to place witnesses on the stand to prove good reputation was too indefinite to be considered; it not stating the facts, or whether reputation was an issue.
    4. Criminal Daw @=>1120(7) — Bill oe Exceptions — Sufficiency.
    A bill of exceptions not stating the object and purpose of testimony sought to be introduced is not entitled to consideration.
    5. Homicide @=158(1) — Evidence of Threats —Admissibility.
    In prosecution for the murder of a daughter, where defendant had testified to an accidental shooting, and several witnesses had stated that they had known defendant for several years, and that he was always kind to such daughter, evidence that on defendant’s return home in an automobile and shortly -before the shooting he ran around the automobile and into the house, and said, “I am going to kill every God damned one of the family,” was admissible.

      6. Homicide @=>159 — Evidence of Theeats— Admissibility.
    Evidence th,at four or five years ago defendant had shot at deceased was'admissible.
    7. Cbimtnal Law @=>695(1) — Bill of Exceptions.
    In a bill reciting that testimony of a prior shooting was objected to'upon the ground that it occurred four or five years prior to the shooting in the instant case, the ground of objection was not a statement of jüict, but a reason for the objection.
    8. Homicide @=>158(2) — Evidence op Theeats —Admissibility.
    In a prosecution for the murder of a daughter, where defendant had testified to an accidental shooting, and several witnesses had stated that they had known defendant for several years, and that he was always kind to such daughter, testimony that some months previous to the homicide defendant told witness with-whom he had lived on a farm that he was going to kill the whole family, was admissible.
    9. Ceiminal Law @=>547(2) — Excluding Testimony.
    In a prosecution for murder of a daughter, refusal to admit in evidence transcribed stenographer’s notes, taken by a private stenographer of defendant’s counsel at the examining trial, showing that a witness had stated that defendant said he was going to kill every one of them that was on the place, held not error, where the court stated that the witness could refer to the notes and testify as to her recollection, evidence under any view being detrimental rather than beneficial to defendant.
    Appeal from District Court, Kaufman County; Joel R. Bond, Judge.
    Allen Anderson was convicted of murder, and lie appeals.
    Affirmed.
    Huffmaster & Huff master, of Kaufman, for appellant. E. B. Hendricks, Asst. Atty. Gen., for tlie State.
   DAVIDSON, P. J.

Appellant was convicted of murder; his punishment being assessed at 35 years’ confinement in the penitentiary.

The state’s case is that appellant killed his daughter; that he had previously shot at her in Rusk county before moving to Kaufman county, and had threatened to kill every member of the family. On the evening of the killing he returned from Dallas in an automobile driven by his son, and upon reaching home got out of the car, went upstairs where his daughter and wife were and shot the daughter, and threatened to kill his wife, who grabbed the gun, which was finally taken from him. His theory was that as he got out of the car at the front of his home, passing around it he was struck and one of his ribs broken; that he was stabbed in the shoulder; that he ran upstairs to get his gun, and his daughter undertook to take the gun from him, when it was accidentally discharged, inflicting the fatal wound.

The court overruled appellant’s applicacation for a continuance. This will not be considered because a bill of exceptions was not reserved to such ruling.

Bill of exceptions No. 1 was not approved by the judge, therefore it cannot be considered.

Bill No. 2 recites that while Herbert Young, assistant county attorney, was making the opening argument for the state he used the following language:

“Gentlemen of the Jury: If this negro had a good reputation in East Texas, they had the witnesses here to prove it; they brought the witnesses from East Texas, and placed them on the stand, but not one time did they ask any of them what his general reputation in that community was.”

To the use of this language appellant’s counsel excepted and requested the court to instruct the jury not to consider the language. This bill is signed without qualification, but is rather indefinite, we think, to be considered. What the facts were with' reference to the question presented by the prosecuting attorney’s argument are not stated, and whether his reputation was an issue in the case is not stated. The bill must be sufficiently complete to manifest the error in such manner as to be considered.

Another bill recites that the appellant placed several named witnesses on the stand, and offered to prove that each' of said witnesses had lived near the defendant and his family in Rusk county in East Texas for the past 17 or 18 years next before the defendant moved to Kaufman county, and that they knew the witness Alberta Anderson who testified for the state during the time she lived with defendant and his family in East Texas; and that she was a daughter of the wife of defendant, but not a daughter of the defendant; that her name was not Alberta Anderson, but Alberta Harris, and that she was generally known in East Texas as. Alberta Harris, and the jury being retired, said^ witnesses testified as above before1 the court. The state objected to this testimony, and the objection was sustained. This bill does not state the object and purpose of this testimony, or why it was sought to be introduced. In order to entitle this bill to consideration it should have stated the object and purpose of introducing this testimony.

There is another bill showing that Lou Allie Anderson, state’s witness, testified:

“Papa run around the car and run in the house and said, T am going to kill every God damned one of the family.’ ”

And to this testimony defendant objected, upon the ground that it was immaterial, irrelevant, and prejudicial, and not a threat against deceased or any particular member of the family. The court qualifies this bill by stating the testimony was admitted for two reasons: First, for the purpose of showing intent after the defendant had testified to an accidental shooting; second, it was admitted in rebuttal to the testimony of several witnesses, including the defendant, who testified for the defendant that they had known the defendant and his daughter Genett for several years, and tli'at lie was always kind and affectionate to her. This testimony, under this statement, was clearly admissible. His daughter Genett was the girl killed by appellant, and was a member of the family. This testimony brings her sufficiently within the rule of admitting threats of this character against appellant. We deem it unnecessary to cite the authorities.

Another bill recites that while Alberta Anderson was on the stand she testified as follows:

“When we lived in Rusk county, Tex., I saw my father shoot at my sister, Genett Anderson. He shot at her with a shotgun. He did not hit her. She ran around the corner of the house, and he missed her.”

Appellant objected to this upon the ground that it showed an assault upon the deceased by defendant 4 or 5 years ago, and too remote and prejudicial. These objections were overruled. At what time this shooting occurred is not stated. The ground of objection that it occurred 4 or 5 years prior to the shooting in the instant case is not a statement of fact, but a reason for objection. The court, however, signs this bill: First, because it was admitted for the purpose of showing intent after the defendant had testified to an accidental shooting; second, it was admitted in rebuttal of several witnesses, including the defendant, who testified for the defendant that they had known the defendant and his daughter Genett for several years, and that he was always kind and affectionate to her. The reasons given are sufficient answers to the objections, even if the bill was sufficiently explicit to be considered.

Alberta Anderson, as shown by another bill, testified that:

“Defendant'come and went through the house, and said he was going to kill the whole God damn family.”

The grounds of objection are not stated in this bill, and this is all there is to it, except the qualification of the court, which shows it was admitted for the purpose of showing intent after the defendant had testified to an accidental shooting; second, it was admitted in rebuttal of the testimony of several witnesses, including defendant, who testified for the defendant that they had known the defendant and his daughter Gen-ett for several years, and that he was always kind and affectionate to her.

The witness Jones was permitted to testify:

That he lived on the Cartwright farm near Crandall. “The defendant, Allen Anderson, has lived with me on the farm for about three years. Some time last May or June I went to his house and found he had run the family off and was sitting in the house with a gun. He told me then, ‘Mr. Jones, X am going to kill the whole God damn family, and then you will have to kill me.’ ”

Objection was urged on the ground that it was immaterial, irrelevant, and prejudicial, and could in no way shed any light on the subject under inquiry,' and was not a threat to kill the deceased or any particular member of the family. These objections were overruled, and the court qualified this .as he did the previous bills, first, that it was to show intent after defendant had testified to an accidental shooting, and that it was also admitted in rebuttal of the testimony of several witnesses, including the defendant, to the effect that they had known defendant and his daughter Genett for several years, and that he was always kind and affectionate to her. As stated with reference to the other bills, this testimony was admissible upon the grounds stated by the court, and perhaps other grounds.

Another bill shows Spence Anderson testified :

“When we lived in East Texas about five years ago I saw my father shoot at my sister Genett with a -shotgun.”

Objection was urged to this upon the ground that this was an assault upon the deceased of t long ago, and too remote and prejudicial to defendant, and tended to inflame the jury afeainst defendant. The same reason was assigned by the court in his qualification to the bill for admitting the testimony as given in the previous bills. We think the ruling of the court was correct.

Another bill recites that appellant placed Mrs. Túllie B. Hindman upon the stand, and at the request of the state the jury was retired from the courtroom, and she testified:

“My name is Mrs. Billie B. Hindman. Am a stenographer, and have been doing stenographic work for the past ten or twelve years. I took the testimony down at the examining trial of the defendant at the Crandall justice court. This is a true and correct copy of the testimony of the witness Alberta Anderson at said trial. Said witness testified there just like I have transcribed her testimony here. This is a question and answer copy of her testimony at said trial, and is correct. She was asked the question at said trial: ‘What did he say? He said, “He was going to kill every God damn one of them that was on the place.” ’ This is the exact question and answer she testified there. This question and answer was asked her there, and this is the answer she made. I have no independent recollection of her testimony, but by reference to my shorthand notes and this transcribed copy X know that she was asked this question and made this answer.”

The jury was then recalled, but the evidence was not allowed to go to the jury. Appellant excepted to this action of the court in refusing him the right to make such proof. The object or purpose of this testimony is not stated. This testimony would have been detrimental to defendant, because it contains evidence of a threat to kill all of them on the place. The court makes this statement:

“The transcribed stenographic notes were not permitted to -be introduced, but the witness could have referred to her notes and testify as to her recollection of the facts, and the court so held and stated to the defendant. The der fendant’s attorney declined to ask witness for her recollection, but insisted on introducing the written memorandum. The witness was no court reporter, but the private stenographer of the defendant’s attorney.”

Under no aspect of this bill does it show error. The object and purpose is not stated why this testimony should be admitted. If it was intended to contradict the statement of some of the other witnesses who said he would hill every damn member of the family, the language used by the different witnesses with reference to this threat was not 'materially different. The (object and purpose was not stated for seeking this testimony, and we are of opinion that, viewed from any standpoint, it would have been detrimental rather than beneficial to the defendant.

The judgment is affirmed.

PRENDERGAST, X, absent.
      <§=>For other oases see same topic and KEY-NUMBKR, in all Key-Numbered Digests and Indexes

      ¡@=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MORROW, J. MORROW, J.

text:
    GOSS v. STATE.
    (No. 4735.)
    (Court of Criminal Appeals of Texas.
    Jan. 16. 1918.
    On Reinstatement of Cause, March 20, 1918. On Motion for Rehearing, May 1, 1918.)
    1. Bail <@==>65 — On Appeal — Sufficiency.
    Under Code Or. Proc. 1911, art. 903, prescribing the form of a recognizance on appeal in a criminal proceeding, the omission from a recognizance in a prosecution for the sale of intoxicating liquor contrary to law of the statement that defendant had been convicted, naming the offense, was fatal.
    On Reinstatement of Cause.
    2. Criminal Law <@=>1159(3) — Appeai>-Re-VIEW.
    In a prosecution for selling intoxicating liquor in violation of law, findings based on conflicting testimony will’ not be reviewed on appeal.
    3. Intoxicating Liquors <@=>236 (8) — Prosecution-Evidence.
    Under Pen. Code 1911, art. 589, placing on the state the burden of proving that accused was engaged in selling intoxicating liquors, and article 591, requiring proof of at least two sales, evidence in a prosecution for engaging in the 'business of selling intoxicating liquor in prohibition territory held to sustain a conviction.
    On Motion for Rehearing.
    4. Criminal Law <§=>519(1) — Evidence — Confessions.
    In a prosecution for selling intoxicating liquors in violation of law, testimony that defendant had told witness, who was a grand juryman, that he had sold beer to the prosecuting witness, and that he would plead guilty if witness would aid him in getting a suspended .sentence, was, not inadmissible as an involuntary confession; defendant not then being under arrest or before the grand jury.
    5. Criminal Law <§=>408 —Evidence —Admission — Compromise Propositions.
    Such evidence was not inadmissible as being a compromise proposition; the statement that defendant had sold the liquor being unqualified.
    Appeal from District Court, Grayson County; C. T. Freeman, Judge.
    Bob Goss was convicted of selling intoxicating liquor in violation of law, and he appeals.
    Affirmed.
    B. F. Gafford, of Sherman, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

The state, through its Assistant Attorney General, has filed a motion to dismiss the appeal on the ground of want of jurisdiction because of the absence of a recognizance such as required by law. The form- of the recognizance prescribed is set out in article 903, C. C. P. Among other things, it is required that it shall state that the appellant has been convicted, naming the offense. This is omitted in the recognizance found in the record, and under the decisions of this court it is rendered thereby fatally defective. Watson v. State, 62 Tex. Cr. R. 620, 138 S. W. 611; White v. State, 68 Tex. Cr. R. 147, 151 S. W. 826.

The state’s motion must be sustained, and the appeal dismissed.

On Reinstatement of Cause.

On a former day of the term the appeal herein was dismissed on account of a defective recognizance. A recognizance, made in compliance with the law, has been filed, and the case will be reinstated and considered on its merits. Conviction was for unlawfully pursuing the business of selling intoxicating liquors in prohibited territory. Specific sales are charged to have been made, one on the 21st of March, 1917, to Lowe Hazlewood, and one on the 14th of April, 1917, to Andrew Roach. Each of them testified to the purchase from appellant of intoxicating liquor at about the time charged in the indictment. One of them testified to two. other similar transactions about the same time. ,

The two express agents testified that a number of shipments of packages purporting to contain beer and whisky had come to the express offices addressed to appellant, and in some instances these witnesses testified that the packages had been delivered to appellant and exhibited his receipt therefor, which the witnesses claimed to have seen him sign. In other instances they introduced receipts which they claimed bore his signature. These transactions were quite numerous and covered various dates, most of them during the year 1917, though some of them were in 1916. Another witness testified to the receipt of liquors by express, which were shipped in his name at the request of appellant and delivered to the appellant.

The appellant testified and sought to establish an alibi as to one of the transactions laid in the indictment, his testimony going to the point that at the date that the sales were alleged to have been made he was not in Van Alstyne, Grayson county, where the offense was charged to have been committed, but was in Ft. Worth. From his testimony it appears that he had received various shipments of intoxicating liquor. He did not go into details as to tlie particular times of shipments, nor question the accuracy of the data given by the express agents with reference to the matter, but claimed that such intoxicating liquors as he had received had been either for his own use, or had been received under circumstances where he and others had put their money together in advance of the shipments and had had the liquor shipped in his name for convenience, and not for sale, and that he had sold none to either of the parties mentioned, but that that which had been shipped to him had been used by him and others who had joined in ordering it.

There was testimony impeaching one of the state’s witnesses who testified to the sales by proof that his reputation for truth and veracity was bad, and there was testimony contradicting the other one as to his whereabouts and that of appellant at the time and place of the alleged transaction.

There are no objections to the admission of evidence upon the trial, though the several points made in the motion for new trial are also embodied by bills of exception taken to overruling motion for new trial. These bills add nothing to the motion for new trial, and the alleged errors of the trial judge in admitting the evidence complained of therein are not available in that no objection to the evidence was made at the time it was admitted. Vernon’s C. C. P. pp. 536, 537, and cases cited; also pages 528, 529, 534, and 535.

The only question presented for review is the sufficiency of the evidence. The credibility of the witnesses who testified that the sales were made was for the jury, and the conflict between their testimony and that of appellant upon that issue, having been solved by the jury against appellant, is conclusive upon this court. Looper v. State, 74 Tex. Cr. R. 144, 167 S. W. 342; Johnson v. State, 200 S. W. 832; White’s Ann. C. C. P. § 942, art. 766.

The law puts the burden upon the state of proving in this character of prosecution that the accused is engaged in the business or occupation of selling intoxicating liquors in territory where the sale is prohibited by law (P. C. art. 589), and has the burden of proving that in pursuance of said occupation he made at least two sales of intoxicating liquor to persons who must be named in the indictment (P. C. art. 591; Fisher v. State, 197 S. W. 191; Gearheart v. State, 197 S. W. 187; Oliver v. State, 68 Tex. Cr. R. 414, 152 S. W. 1067). These cases and others in Vernon’s P. C. p. 299, hold that proof that appellant made a sale of intoxicating liquor to each of the parties named in the indictment is not sufficient. There must be other proof, but the measure of the other proof is not fixed by law. It has been held, however, in a number of cases that the evidence was sufficient where the two sales alleged were made, and where the evidence showed that the accused had received quantities of intoxicating liquor through the express office or otherwise come in possession of it. Vernon’s P. C. p. 300, also page 314; Wagner v. State, 53 Tex. Cr. R. 306, 109 S. W. 169; Watts v. State, 75 Tex. Cr. R. 507, 171 S. W. 708; Mills v. State, 77 Tex. Cr. R. 258, 178 S. W. 368. This case, we think, clearly comes within this class. The explanation of his receipt of various shipments and possession of intoxicating liquor presented an issue which the circumstances authorized the jury to determine against him. Robertson v. State, 77 Tex. Cr. R. 410, 178 S. W. 1191.

We regard the evidence as sufficient under the precedents to support the conviction, and the judgment of the lower court is consequently affirmed.

PR.ENDERGAST, J., absent.

On Motion for Rehearing.

MORROW, J.

Appellant draws our attention to the fact that we were mistaken in our conclusion that his bills of exception related to the motion for new trial only.

-Bill No. 4 complains of admission of the testimony of the witness Bray who testified that appellant told him that he had sold the beer to the prosecuting witness Roach; that appellant voluntarily made this statement, and further told the witness that he would plead guilty if he (the witness) would aid him in getting a suspended sentence. The witness was at the time a member of the grand jury, but the conversation took place on the street. The witness did afterwards see the county attorney, who declined to agree to a suspénded sentence. The point made against this testimony is that it was inadmissible as a proposition to compromise. The court overruled the objection. Appellant was not under arrest or before the grana jury, and according to the testimony voluntarily, made the statement that he had sold the beer and requested the witness to assist him in getting immunity. On the subject'we take from Mr. Branch’s Ann. P. C. p. 41:

“To render a confession inadmissible upon the ground that it was induced by the promise of some benefit to defendant, such promise must be positive, and must be made or sanctioned by a person in authority, and it must also be of such character as would be likely to influence the defendant to speak untruthfully. Thompson v. State, 19 Tex. App. 616; Rice v. State, 22 Tex. App. 654, 3 S. W. 791; Carr v. State, 24 Tex. App. 562, 7 S. W. 328, 5 Am. St. Rep. 905; Neeley v. State, 27 Tex. App. 329, 11 S. W. 376; Cannada v. State, 29 Tex. App. 537, 16 S. W. 341; Thomas v. State, 35 Tex. Cr. R. 178, 32 S. W. 771; Carlisle v. State, 37 Tex. Cr. R. 108, 38 S. W. 991; Anderson v. State, 54 S. W. 581; Williams v. State, 65 S. W. 1059; Brown v. State, 45 Tex. Cr. R. 139, 75 S. W. 33.”

Under this rule the evidence was not to be excluded as an involuntary confession. Neither was it inhibited on the theory suggested by appellant that it was a compromise proposition. From the witness’ testimony it appears that the statement that he sold the intoxicating liquor was unqualified. His proposition to plead guilty, however, was conditioned. The statement of fact was, apparently independent of the overtures made by appellant. On this subject see Cyc. vol. 16, p. 950.

Another bill complains of the introduction in evidence of testimony relating to the receipt of shipments of intoxicating liquor through' the express. The same question presented by this assignment has been determined against appellant’s view several times. See Cowley v. State, 72 Tex. Cr. R. 173, 161 S. W. 471; Clark v. State, 61 Tex. Cr. R. 597, 136 S. W. 260; Byrd v. State, 69 Tex. Cr. R. 35, 151 S. W. 1068; Leonard v. State, 68 Tex. Cr. R. 549, 152 S. W. 632; Creed v. State, 69 Tex. Cr. R. 464, 155 S. W. 240; Brown v. State, 72 Tex. Cr. R. 33, 160 S. W. 374; Miller v. State, 72 Tex. Cr. R. 151, 161 S. W. 128; Robinson v. State, 66 Tex. Cr. R. 392, 147 S. W. 245; Molthrop v. State, 66 Tex. Cr. R. 546, 147 S. W. 1159.

The other questions raised relating to the credibility of the witnesses have been passed upon by the jury.

The motion for rehearing is overruled.
      <®c=>For other ceses see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


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    HARRIS v. STATE.
    (No. 4973.)
    (Court of Criminal Appeals of Texas.
    April 3, 1918.
    Rehearing Denied May 1, 1918.)
    Criminal Law <&wkey;1092(4) — Appeal—Statement of Facts and Bills of Exceptions— Delay in Filins..
    Where statement of facts and bills of exceptions are not filed within the time allowed, and no additional time is granted, a motion to strike must be granted.
    Appeal from Lampasas County Court; J. Tom Higgins, Judge.
    Bessie Harris,was convicted of vagrancy, and she appeals.
    Affirmed.
    T. S. Alexander and Roy L. Walker, both of Lampasas, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

This is an appeal from a conviction for vagrancy, a common prostitute, wherein the fine was assessed at $25.

The term of court at which the conviction occurred adjourned on December 15th. The statement of facts and bills of exceptions were not filed until January 12th following, 8 days more than the 20 which could have been allowed for that purpose. There was no order allowing any time after adjournment; hence the state’s motion to strike out the bills and statement of facts must necessarily be graqted. De Friend v. State, 69 Tex. Cr. R. 329, 153 S. W. 881; Durham v. State, 69 Tex. Cr. R. 71, 155 S. W. 222; and a great many other cases. Without these, there is no question presented which can be reviewed.

The judgment is therefore affirmed.


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    WILLIAMS v. STATE.
    (No. 4997.)
    (Court of Criminal Appeals of Texas.
    April 17, 1918.)
    Criminal Law &wkey;>1124(4) — Appeal—Record.
    For review, as to motion for new trial, the facts stated as grounds in the motion must be prepared and sent with the record.
    Appeal from District Court, Wharton County; Samuel J. Styles, Judge.
    Tobe Williams was convicted of murder, and appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

This is a death penalty conviction for murder.

The record is before us without statement of facts or bill of exceptions. The two grounds of the motion for new trial relate to questions of fact, but are in no way verified. The matters are stated as grounds in the motion for new trial, but there is nothing in the record to support either ground; the facts bearing upon these questions not having been prepared and sent with the record.

The judgment, therefore, will be affirmed.

PRENDERGAST, J., absent.


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    PAVNE v. STATE.
    (No. 4835.)
    (Court of Criminal Appeals of Texas.
    April 17, 1918.)
    1. Witnesses <&wkey;383 — Impeachment — Conflicting Statement.
    Where burglary was committed at L.’s place, and an accomplice testified he and defendant went from there to C.’s place, a sworn statement by a state’s witness that he went that night with defendant and accomplice to C.’s place was immaterial, and was inadmissible on behalf of the state for impeaching testimony of such witness that he went to a dance with defendant at P.’s place on the night of the burglary..
    2. Witnesses <&wkey;388(2) — Impeachment.
    Where a burglary was committed Friday night at L.’s place, and an accomplice testified they wont from there to C.’s place, a sworn statement of a state’s witness that he went with defendant and accomplice to C.’s place Friday night could not be used to impeach such witness on ground of surprise, where the burglary and particular night were not called particularly to the attention of the witness while making the statement; such witness having testified on- the stand that he went to a dance at P.’s place on the night of the burglary.
    3. Criminal Law <&wkey;804(8) — Appeal — Certification of Charges.
    The statute is mandatory that charges given in criminal cases be certified.
    Appeal from, District Court, Hale County; R. C. Joiner, Judge.

      Bob Payne was convicted of burglary, and he appeals.
    Reversed and remanded.
    W. W. Kirk, of Plainview, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

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

The testimony of C. I. Williamson makes himself an accomplice. Substantially, he testified that he and appellant went to the place of one Lovvorn, and burglarized his house and took meat and feedstuff.

A bill of exceptions recites that after Williamson had testified that he and appellant about 12 or- 1 o’clock on April 13th committed this burglary of Lovvorn’s barn, that among other things they took two hams and two middlings of meat from the house, that on the same night before they burglarized Lovvorn’s barn the two, in company with George Morley, went out in the country about five or six miles to the Clark place in a wagon, that he said nothing about committing this burglary until after his barn had been searched by the officers on or about April 17th or 18th, in which there was some feedstuff he had stolen, and after he had testified that he did not know whether he had been in-dieted by the grand jury for this burglary and other burglaries and thefts, and after Williamson had testified on cross-examination that he had purchased a gray mare prior to the alleged burglary from the defendant, partly for cash and partly on credit, and that he had paid defendant for the mare, and after Lovvorn had testified on direct examination that the one ham and' middling of meat found at the defendant’s house the week after the alleged burglary was part of the same meat that was taken from his barn on the night of the alleged burglary, “and after the state had rested, the defendant, his defense being that he was not with said C. I. Williamson at the time of the alleged burglary, but was at a dance at 1-Ial Preston’s, and his explanation of how the meat found at his house the week following the alleged burglary came there, being that he purchased it on the morning following the alleged burglary for $5.75 from said C. I. Williamson, which amount he allowed said Williamson a credit on a debt said Williamson owed the defendant for a gray mare the defendant had sold said Williamson prior to said burglary, and defendant’s theory of why said O. I. Williamson had implicated the defendant in said burglary being that it was to procure his immunity from prosecution, had rested, after all of which the state, in surrebuttal, introduced said George Morley, who testified on examination in chief that he was1 about 16 years old, a brother-in-law to the defendant, he remembered the occasion when some meat was supposed to have been stolen from the barn of W. J. Lovvorn on Friday night in - April last, that he, C. I. Williamson, and the defendant did not go out into the country to the Clark place on that night, that they did go out to the Clark place one night in April about dark and returned about 9 or 10 o’clock, but did not remember whether or not it was on a Friday night, that he was with the defendant that Friday night at a dance, that he made a written statement in the district attorney’s office the week after the meat was supposed to have been stolen from said Lovvorn’s bam, and at the time of making such statement in the district attorney’s office the defendant was not present and that at the time he, the defendant, and said Williamson went out in the country to the Clark place was the time to which he referred in his statement made in the district attorney’s office, and after which the state, after having said statement made in the district attorney’s office identified, introduced in evidence, and same was read to the jury, the following statement from the statement m-ade by the witness Morley in the district attorney’s office in the absence of the defendant, to wit: ‘Friday night Charles Williamson, Bob Payne, and myself went out in the country southwest. We went to a place where Mr. Clark had some feedstuff.’ ”

Quite a number of objections were urged to the introduction of this testimony. The court admitted it with this explanation:

“The witness being a brother-in-law of defendant was a very unwilling witness, and, the witness having made a sworn statement to the district attorney, the state had a right to believe that when put on the stand that he would testify as shown in said statement. But after witness, for the first time, claimed that on the night of the burglary that he was with the defendant at a dance, and at no time before testifying on the stand had made any such claim and shown himself very antagonistic to the state, said testimony was introduced.” .

W(o are of opinion that the ruling of the court was not correct. Whether they went to the Clark place or not would be immaterial, and inasmuch as the witness-was not questioned by the district attorney, in the statement in his office, with reference to this particular transaction, and not being called to the witness’ attention at the time as to whether it was this or some other particular occasion so as to call his attention to it, he could not be impeached on the ground that the district attorney was surprised at the testimony. This testimony was not either affirmatively or negatively injurious to the state’s case, and, further, the matter not having been called to his attention at the time, he is not subject to be impeached uncier any aspect of the law. The authorities seem to be very clear on this proposition. The court was in error in admitting this testimony. This same matter is presented by two bills of exception.

Exceptions were reserved to the charge of the court on several grounds. The court failed to charge the jury with reference to accomplice testimony. An exception was reserved to this failure, and the court did not •of Ms own volition cover tMs defect in tlie charge. There is a charge in the record, hut not approved nor certified by the'trial court, ■charging the jury with reference to the law governing accomplice testimony. A bill of •exceptions was reserved to this charge because not certified by the judge. This matter is shown in two or three ways, but without •deciding the matter further we would say upon the trial of cases where charges are giv•en the court should certify them. The statute is mandatory in this respect, and has been so held by this court. Alberson v. State, 54 Tex. Cr. R. 8, 111 S. W. 412.

. The judgment is reversed, and the cause remanded.

PRENDERGAST, J., absent.
      «gssFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes