author: •PRENDERGAST, J.

text:
    JEFFRIES v. STATE.
    (No. 4596.)
    (Court of Criminal Appeals of Texas.
    Oct. 31, 1917.
    Rehearing Denied Nov. 28, 1917.)
    ' 1. Intoxicating Liquors <©=5236(1) — Criminal Prosecution — Sufficiency of Evidence.
    Testimony .that witness bought liquor from defendant, and that considerable liquor was received by defendant from .a common carrier and was found on his premises, held to sustain' a conviction for selling intoxicating liquors.
    2. Criminal Law <©=>1091(4) — Appeal and Error — Bills of Exceptions.
    Bills of exceptions to the admission of prohibition election orders, which did not set out or state the orders or show that election contest proceedings were instituted, present no error.
    3. Criminal Law <§=1110(1) — Appeal and Error — Affidavits.
    Affidavits made by accused in support of a motion for new trial after such motion had been overruled will be stricken upon appeal.
    4. Criminal Law <§=608 — Appeal and Error-Affidavits.
    Where an affidavit used by the state in accused’s motion for new trial was lost, the state could not substitute a new affidavit therefor after the court’s adjournment.
    5. Criminal Law <§=608 — Continuance — Absence of Witness.
    Evidence regarding accused’s attempts to secure the attendance of a witness who lived at place of trial held not to show such diligence as requires reversal for the trial court’s failure to grant a continuance.
    6. Criminal Law <§=730(2) — Argument of Counsel.
    In prosecution for selling intoxicating liquors, statements in tíre prosecuting attorney’s opening argument referring to accused’s reputation as a bootlegger, etc., held not to require reversal, where the trial court instructed the jury to disregard the remarks and the lightest punishment was assessed.
    Appeal from District Court, Cooke County; C. F. Spencer, Judge.
    M. G. Jeffries, alias Dock Dippy, was convicted of selling intoxicating liquors, and appeals.
    Affirmed.
    Owen Davis and W. S. Moore, both, of Gainesville, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   •PRENDERGAST, J.

The indictment herein alleged that appellant, on or about the 22d day of March, 1917, unlawfully sold to Adam Dillinger intoxicating liquor in said county after prohibition had been adopted therein in 1910. He was convicted, and his punishment assessed at the lowest prescribed by law.

The indictment, so far as the allegations of rthe prohibition election, the orders of the commissioners’ court,, and the publication thereof are concerned, is exactly like the indictment in the case of Fump Coursey v. State, 199 S. W. -, decided by this court on October 17th, in an opinion by Presiding Judge Davidson, wherein this court held that the indictment was valid. We adhere to that decision. It is useless to’discuss the question in this case.

Dillinger, the alleged purchaser, swore positively that he bought a bottle of whisky from appellant as alleged in the indictment and paid him one dollar therefor. He swore that the sale occurred in an alley back of a pool hall and restaurant in Gainesville, and that there was no one else present except he and appellant. He further swore that Pink Ozment was not present at the time, and that appellant did not at the time merely give him and Ozment a drink of whisky out of a bottle.

The state proved up and introduced all of the orders of the commissioners’ court ordering the election, the canvass of the returns, and the declaration that prohibition had carried, and the order putting the law in force in that county and the proper publication thereof.

Tom Ford, the sheriff of Oooke county, testified that on or about March 23d, by virtue of a search warrant for that purpose, he searched appellant’s house and found 67 pints and 2 quarts of whisky; that he found it in a closet kind of back in the wall; part of it was in a grip, part in the wall of the house, and part in a closet. The sheriff took the liq- • uor to his office at the time. Appellant did not disclaim ownership of any of it at the time, and never said any part of it was .not his until he testified on the trial in this case.

Mr. Jones, the agent of the American Express Company of Gainesville, testified that on March 21st appellant received from said company twelve quarts of intoxicating liquor . on the afternoon train of that date. Appellant made no denial of this.

Appellant himself testified and swore that, on the occasion when the, said witness Dillinger testified that he bought a bottle of whisky from him, said Ozment was present, and he did not sell said witness any liquor, but gave him and Ozment a drink of liquor at that time out of a bottle. He further had Braken, a horse trader, to testify that, the day before the sheriff found that liquor in appellant’s house, he had put 36 pints of whisky therein, and his brother swore that at the same time he had put 24 pints therein, and they respectively testified that much of the liquor taken by the sheriff belonged to them, but neither had ever set up any claim to it or demanded possession thereof from the sheriff or any one else.

Without doubt the testimony is amply sufficient to sustain the conviction, and, as stated, the jury assessed the lowest punishment.

Appellant’s bill No. 4 shows that he ob-. jected to the introduction in evidence of the order of the commissioners’ court ordering a prohibition election, on the ground that it was immaterial and irrelevant, not supported by the indictment, and it constituted a variance from the allegations in the indictment. This is the substance of the whole bill. It does not 'give a copy of the order or any data other than stated. His next bill shows that he objected to the introduction of the order showing or tending to show, the publication of the said election. This is the whole of the bill, except his objections that it was immaterial, irrelevant, not supported by -any allegation in the indictment, and at variance with the allegations in the indictment. The order is not copied, and in no other way shown by the bill. By his next Kll he objected to the commissioners’ court’s ¡order declaring the result of the prohibition ¡election in said county. That order is not .■given or otherwise stated. There was no ■error by the court shown by either of these bills. Doyle v. State, 59 Tex. Cr. R. 61, 127 S. W. 815; Wesley v. State, 57 Tex. Cr. R. 277, 122 S. W. 550; Gipson v. State, 58 Tex. Cr. R. 405, 126 S. W. 267; Hardy v. State, 52 Tex. Cr. R. 421,107 S. W. 547; Alexander v. State, 53 Tex. Cr. R. 505, 111 S. W. 145; and other oases unnecessary to cite.

By another bill he complains of the court overruling his motion for a continuance. This motion was made because of the absence of said Pink Ozment. He alleged that he caused an application to be made, and a subpcena to be issued and served upon said witness. When, where, and how this was done is not alleged; nor it is alleged or shown when the attendance of the witness was required. He alleged that he expected to prove by the witness that at the time of the alleged sale no sale was made, but that he (the defendant) gave to the prosecuting witness a drink of whisky, and that the witness will testify that he was present at the time at which the said sale was alleged to have taken place. The court qualified the bill, stating that “the court did not believe the statement in said application, and the subsequent affidavit of the witness verifies this belief.” There is a further' statement of the judge as to the application for a continuance, wherein he states that the attached affidavit of said witness Ozment shows that defendant’s efforts to have him present were rather feeble. In connection with this motion to continue, appellant made a motion in this court for a certiorari requiring the clerk of the court below to send up properly certified copies of two affidavits,, one by appellant and the other by Ozment. The clerk has sent up properly certified copies of these affidavits. They were both made and filed in the court below on May 31, 1917. The affidavit of appellant is to the effect that this case was first set for trial on May 7, 1917; that because his attorney had to be in Oklahoma at that time it was agreed that his case would be passed or postponed until May 14th, but that it was not reached for trial until May 16th; that after this agreement to pass or postpone he met said Ozment on the streets in Gaines-ville, and he (the witness) asked what about his case, and appellant told him it would not be tried on that day, but had been postponed; that the witness made no reply to that, and there was no further conversation between them at that time, or any other time about the case until after the trial of it; that he' at no time told Ozment that his case had been continued. The affidavit of Ozment was to the effect that he lived in Gainesville, and had lived there for years; that he was -present with appellant and said Dillinger in an alley in Gainesville when Dillinger claims he-bought a pint of whisky from appellant; that they all took a drink of whisky from a bottle that appellant had, but that no sale was made to Dillinger, and nothing said about one; that this was the only time he was ever present when the other two were at said place; that he was not present at the trial of this case, although he had been subpoenaed on appellant's behalf, and if he had been present he would have testified as shown above; that on the day the case was set for trial he met afppellant on the streets of Gainesville and asked him what about his casé, and appellant either told him the case had been postponed or continued; that he was not sure which, but that he understood the case was continued; that he was not a lawyer and did not understand the difference between the words continued and postponed. He further swore: ,

“I have made an affidavit at the instance of the county attorney, in which I stated that Jef-fries told me that the case was continued, but I am not sure that he used'the word ‘continued.’ I stated in the affidavit to the county attorney merely my understanding of it.”

There is also in the record another affidavit by Ozment wherein he swore:

“My name is Pink Ozment. I live in Gaines-ville,. Cooke county, Tex. I am 37 years old, and have known M. G. Jeffries, alias Dock Dippy, about 10 years. I met M. G. Jeffries, alias Dock Dippy, about a week before Ms. trial, and he told me that it had been continued. I was at home in Gainesville, Cooke county, Tex., the day he was tried, and they could have gotten me by sending after me or telephoning me. I was in the courtroom the next day after the trial when the motion for a new trial was made in the M. G. Jeffries, alias Dock Dippy, ease.”

This affidavit was sworn to and filed on June 12th. Appellant’s attorney in oral argument, when this cause was submitted, stated, as we remember; it, that this affidavit was a copy and intended to substitute another affidavit made by Ozment, evidently as stated by him in the other affidavit above given, which had been lost, and this latter affidavit was merely an attempt to substitute the lost one. He made a motion in this court to strike out this affidavit of Ozment copied just above because made and filed after court had adjourned. The state contends and has made a motion herein to strike out the other two affidavits above described, one by said Ozment and the other by appellant himself, which were made and filed on May 31st. The record shows that the court acted on the motion for a new trial herein and overruled it on May 17th, at which time appellant excepted and gave notice of appeal to this court, which was duly entered. It therefore appears clearly that the affidavits of Ozment and appellant, which the state moved to strike out, had neither been made nor filed, and, of course, could not have been known or acted upon by the court at the time he overruled the motion for a new trial; hence the state’s motion to strike them out must be granted.

If the state had desired to substitute the affidavit of Ozment which he made, as he stated, before the county attorney, and it must have been at the time and before the motion for a new trial was acted upon, it could have done so in the court below by making proper motion therefor, serving it upon appellant, and having it acted upon by the court before adjournments hut the state could not substitute that lost affidavit of Ozment by having him make another and filing it after the court had adjourned as stated. 'Therefore the appellant’s motion to strike out that affidavit must be granted.

But, upon the whole, the record clearly shows that appellant used no diligence to have the witness Ozment attend. He lived right in Gainesville, and doubtless could have been obtained either by phone message or another subpoena issued for him, and his attendance secured in time for him to have testified in the trial. It seems that appellant was not so much seeking the attendance and testimony! of the witness as he was for a ground to either continue his case or reverse it because of the absence of said witness. Olearly, under the law his diligence to secure the attendance of the witness was wholly insufficient to entitle him to a reversal.

The only other question is a complaint by appellant in one of his bills of the remarks of the assistant county attorney in his opening argument to the jury, wherein he complains that said assistant county attorney said:

“M. G. Jeffries, the defendant, has the reputation of being the King Bee among the bootleggers of Cooke county.”

He promptly objected to this as improper. The court as promptly sustained his objections, and told the jury to disregard the remarks. The bill shows that thereupon said assistant county attorney turned to the jury and said, “Gentlemen, you know his reputation as well as I do.” Appellant promptly objected to this, and the court as promptly sustained his objection and told the jury to disregard it. He complains of the further argument of said assistant county attorney wherein he claims he said:

“The verdict of the jury in the Fump Coursey Case struck terror to the souls of the bootleggers, and you should do likewise in,this case.”

Appellant objected, and the court sustained his objections, and told the jury to disregard the remarks. The bill states:

Coursey had been found guilty on a prior day of the term for selling intoxicating liquors and his punishment assessed at two years, and some of the jurors in that case were members of the jury in this.

The court qualifies the bill as follows:

“Fred Wankan, assistant county attorney, is a young practitioner, this being the first term of court in which he has ever appeared in contested cases. When the first remark here complained of was made, I sustained the objection to it and instructed the jury not to consider it. When the second remark was made, I also sustained objection to it and instructed the jury not to consider it and told the jury there was no evidence whatever as to defendant’s reputation and admonished Wankan to discuss only the evidence and to stay in the record. No written charge was requested by defendant, as to these remarks, and, defendant having received the lowest penalty, I am of the opinion that no injury resulted to defendant on-account of these proceedings.”

Under the circumstances, this does not present reversible error.

The judgment is affirmed.
      ©nsFor other cases see same topic and KEY-NUMBER in ali Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: DAVIDSON, P. J.

license: Public Domain

text:
    McINISH v. STATE.
    (No. 4692.)
    (Court of Criminal Appeals of Texas.
    Nov. 14, 1917.)
    1. Criminal Law <§=>781(8) — Confession — Falsity of Exculpatoey Statements — In - STBTJCTION.
    The court in a criminal case should instruct the jury that, where a confession is used, it shall all be taken together, and that, where the confession or statement includes exculpatory statements which disprove the state’s case, it devolves upon the state to show that such exculpatory statements are false.
    2. Bukglaey <§=328(3) — Issues—Entey.
    • Defendant’s statement that he entered another’s house at night, showing an entry through an open door, raised the question that he did not commit burglary, but the house may have been open.
    3. Burglary ©=>31 — Evidence—Entey.
    In a prosecution for burglary, evidence that the doors of the house were in such condition that they might be open at any time was admissible.
    Appeal from 'District Court, Wichita County; Edgar Scurry, Judge.
    John Mclnish was convicted of burglary, and he appeals.
    Reversed and remanded.
    Walter Nelson and T. F. Hunter, both of Wichita Falls, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of burglary, his punishment being assessed at 2 years’ confinement in the penitentiary.

The state’s contention is that appellant entered the house of one Bundenburg at night, in connection with another party, and took certain property. Appellant was carried before the grand jury, and made a statement in writing, which the state introduced as a confession or admission. In this appellant admitted or confessed that he entered the house at night in company with a party named Allen. This confession or statement excludes the idea of a burglary, showing that the parties entered through an opened door. This is a sufficient statement to review one of the questions suggested for reversal.

The court failed to instruct the jury that where a confession is used it shall all be taken together, and where the confession or statement includes exculpatory statements, wliic-h disprove, or tend to disprove, the state’s case, it devolves upon the state to show the exculpatory statements false, and the jury must be instructed along this line. This has been the well-settled law in Texas, arid the cases may be found collated on page 758 of Vernon’s Ann. Crim. Procedure. This matter was brought to the attention of the court in exceptions to the charge and special requested instructions which were refused. The evidence is sufficient, perhaps, to show that appellant had some of the goods taken from the house, but the account given of the possession of the goods and appellant’s connection with it were such as to show that he did not commit burglary, but went through the open door. The evidence raises the question that the house may have been open. This is shown by the testimony of appellant.

There is another question raised, to wit, misconduct of the jury in alluding to and partially discussing the fact that appellant failed to testify. This will not occur upon another trial, and therefore it is not discussed.

Another matter is suggested by bill of exceptions in this: Appellant offered testimony to show that the doors of the house were in such condition that they might be open at any time. The witness whose testimony was rejected rented the alleged burglarized house something like a month after the supposed burglary, and would have shown, had he been permitted to do so, that the door fastenings were in such condition that they would not remain closed unless securely fastened in some way, and that unless this was done they would in fact be open. Upon another trial we are of opinion that this testimony should go to the jury. It was a fact of a permanent nature, belonging to the house and showing its condition, and in harmony with appellant’s statement, that the house was open, and that it was not broken by him or Allen.

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


text:
    CORTEZ v. STATE.
    (No. 4688.)
    (Court of Criminal Appeals of Texas.
    Nov. 14, 1917.)
    1. Criminal Law' <®=»608 — Continuance to Procure Testimony — Application.
    In liis application for continuance to procure the testimony of absent witnesses, defendant had to swear, to comply with the law, that he could not prove the facts he desired to prove by such witnesses by any other witness known to himself.
    2. Criminal Law <®=o614(1) — Continuance to Procure Testimony — Case eor Denial.
    Defendant’s application for second continuance to procure the testimony of three absent witnesses was properly denied, where his testimony showed that he might have proved the same matters otherwise than by the particular witnesses.
    Appeal from District Court,. Val Verde County; W. S. Anderson, Judge.
    Gregorio Cortez was convicted of an offense, and he appeals.
    Judgment affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of rape and allotted 20 years’ confinement in the penitentiary.

The issue is sharply drawn as to guilt. The daughter of appellant swore that her father had been having intercourse with her against her will and under threats; but this would make hut little difference, perhaps, in view of the fact that she was under 15 years of age. Her testimony is positive and to the point. His testimony directly contradicts that of his daughter. She says that it occurred in a room at night where the family were all sleeping; that her father made her get in bed with him, her mother and the other children sleeping on the floor. None of the children were used as witnesses in the case, except prosecutrix, ■ and the wife was not called by her husband to testify. Appellant’s theory with reference to this was, however, that his wife was very antagonistic to him.

Appellant filed a second application for a continuance. He desired the testimony of three absent witnesses, named Naves, Hernandez, and Salinas. He desired to contradict his daughter’s testimony in regard to certain statements she made to the effect that he remained for a couple of months in the house, and did not leave it while he was having intercourse with her, so that she might not escape and inform against him. All these matters occurred in the town of Del Rio. His statement was that he did not remain in the house with his daughter, as she testified, but was engaged in business making money to support his family, and that all the money he made he gave to his family. Among other things, he mentions the names of certain witnesses who knew that he was about the streets of Del Rio and engaged in business in that town. These were Hernandez, Oantu, Miers, Rodriguez, and Arteaga. This was a second application. Appellant had to swear, in order to comply with the law, that he could hot prove these facts by any other witness known to himself. In his testimony he mentions these other parties as knowing the fact that he did not remain in his house as testified by bis daughter, and that be was about tbe town of Del Rio and engaged in business of one sort or another. He mentions tbe fact that be was engaged in a butcher shop about 20 days, and sold meat to customers at the butcher shop, and other matters are mentioned. There is no showing made as to why these witnesses were not summoned or process issued for them. If he was engaged in the business he mentioned, and in connection with some of the witnesses named, he could prove those facts, if they were true; at least he could have secured their attendance, or sought to do so. His application for a continuance makes no mention of these witnesses, and yet he testifies as to their knowledge of these matters while on. the witness stand. We are of opinion, without discussing the diligence, which we think was not sufficient, that this application does not present itself for favorable consideration.

The judgment will be affirmed.
      <S=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MORROW, J.

text:
    KING v. STATE.
    (No. 4684.)
    (Court of Criminal Appeals of Texas.
    Nov. 14, 1917.)
    1. Criminal Law <§=31092(7) — Appeal—Bill of Exceptions — Time of Filing.
    A 'bill of exceptions, not filed in the time prescribed by Vernon’s Ann. Code Cr. Proc. 1916, art. 845, as extended by the district court by an order appearing in the record, must be disregarded.
    2. Criminal Law <§=31098 — Appeal—“Statement of Facts.”
    A statement of facts in question and answer form is not a statement of facts, within ■Vernon’s Ann. Code Cr. Proc. 1916, art. 844c, and cannot be considered on appeal.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Statement of Fact.]
    Appeal from District Court, Liberty County; J. Llewellyn, Judge.
    John King was convicted, and appeals.
    Affirmed.
    H. E. Marshall and W. T. Norman, .both of Liberty, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was indicted and convicted for the theft of a hog, and his punishment assessed at three years’ confinement in the penitentiary.

The Assistant Attorney General has filed a motion to strike out the bills of exception. It appears that the term of court at which the judgment was rendered expired on the 2d day of June, 1917. The court made an order, at the time the motion for a new trial was overruled, allowing 60 days after adjournment within which to file bills of exception. These bills were filed August 13, 1917, which was after the expiration of the 60 days allowed within which to file them-No further extension of time appears in the record., Article 845, Vernon’s Ann. Code Cr. Proc. 1916, provides that 30' days after adjournment shall be allowed in which to file statement of facts and bills of exception in terms of court lasting less than 8 weeks, and provides, further, that the court trying the cause shall have power in term time or vacation, for good cause shown, to grant an extension of time thus provided for. This statute has been frequently construed to make it the imperative duty of this' court to disregard bills of exception that are not filed within the time prescribed by the statute as extended by the district court by an order appearing in the record. Vernon’s C. C. P. p. 832; Richardson v. State, 71 Tex. Cr. R. 1ll, 158 S. W. 517; Boyd v. State, 72 Tex. Cr. R. 159, 161 S. W. 459; Messer v. State, 74 Tex. Cr. R. 96, 167 S. W. 342; Roberts v. State, 74 Tex. Cr. R. 294, 168 S. W. 98; Schapiro v. State, 75 Tex. Cr. R. 17, 169 S. W. 683; Bell v. State, 74 Tex. Cr. R. 624, 169 S. W. 1150; Hicks v. State, 75 Tex. Cr. R. 461, 171 S. W. 755; Becker v. State, 76 Tex. Cr. R 518, 176 S. W. 566.

We find in the record the stenographer’s report of the evidence adduced upon the trial in question and answer form. It contains no agreement of attorneys, though the caption states that it was all the evidence adduced. It is certified by the official stenographer, and the district attorney signs it with the letters “O. K.” before his name. The defendant’s attorneys signed it in a similar manner. It bears the signature of the judge, with the words “Approved and ordered filed” above it. The Assistant Attorney General insists that this is not a statement of facts, and that the court is unauthorized to consider it as such, and moves to strike it out. Article 844b, C. C. P., requires the official court reporter to transcribe the testimony adduced upon the trial in question and answer form, and to certify and file it. Article 844c, C. C. P., provides that, when the question a-nd answer transcript is filed, the party appealing' shall prepare, or cause to be prepared, from the transcript, a statement of facts in duplicate, which shall consist of the evidence adduced upon the trial, stated in succinct manner without unnecessary repetition which, when agreed to by the parties and approved by the trial judge, or in the event of the failure of the parties to agree to the statement of facts, certified by the trial judge, shall be sent up as a statement of facts. A statement of facts similar to that in the record in this case, in question and answer form, has been held by this court as not a statement of facts within the meaning of the statute, and not one which this court is authorized to consider. Choate v. State, 59 Tex. Cr. R. 266, 128 S. W. 624; Hart v. State, 67 Tex. Cr. R. 497, 150 S. W. 188; Mooney v. State, 73 Tex. Cr. R. 121, 164 S. W. 828; Felder v. State, 59 Tex. Cr. R. 144, 127 S. W. 1055; Fox v. State, 53 Tex. Cr. R 150, 109 S. W. 370; Essary. v. State, 53 Tex. Cr. R. 596, 111 S. W. 927; Claussen v. State, 70 Tex. Cr. R. 607, 157 S. W. 477. This construction of the statute has been adhered to without deviation, and its application in this case must result in sustaining the motion to strike out the statement of facts.

This deprives us of the privilege of passing upon the merits of the case, and leaves no alternative but to affirm the judgment, which is accordingly ordered.
      <S=»For other oases see'same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    DODD v. STATE.
    (No. 4687.)
    (Court of Criminal Appeals of Texas.
    Nov. 14, 1917.)
    1. Indictment and Information <§=>132(5)— Election — Readin& Indictment to Juey.
    The court having selected the count on which defendant should be tried, constituting an election, the whole information should not have been read to the jury.
    2. Criminal Law <®=406(3) — Evidence—Conversation with Defendant under Arrest.
    A conversation between defendant and officers having him under arrest, detailing his conduct complained of, he not being warned, was inadmissible.
    3. Criminal .Law <©=>730(12) — Improper Argument of County Attorney — Instructions.
    A special charge requested by defendant as to unwarranted language of county attorney in argument denouncing him a thief, as to which the court refused to take any action, should have been given.
    4. Witnesses <§=>337(5) — Character of Accused — Prior Prosecutions.
    Defendant, on a prosecution for drunkenness, not having placed his character in issue, the county attorney should not have questioned him as to having been prosecuted in other counties, and Ms reason for leaving them, and as to the number of times he had been prosecuted where he was then living.
    Appeal from Coleman County Court; W. Marcus Weatherred, Judge.
    Hubert Dodd was convicted, and appeals.
    Reversed and remanded.
    Critz & Woodward, of Coleman, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State. *
   DAVIDSON, P. J.

Appellant was fined $1 under a conviction for being drunk at a private house.

The evidence is sharply at issue on the question of appellant being drunk at the residence of Lofiin where, it is claimed ■ by the state, he was in a state of intoxication. The information contains three counts: First, that appellant was intoxicated in the private house of Jim Lofiin; second, that he was intoxicated in a public place, to wit, in a public road; and third, in a public place, to wit, in the private residence of Jim Lofiin where people had then and there assembled for purposes of amusement. The entire information was read to the jury over objection of appellant. On a previous trial the first count alone was submitted. When the ease was called at a succeeding trial, all three of these counts were read. Appellant urged various objections. It is suggested that, this being a misdemeanor, the question of election as to counts in the information is not subject to the same rule as in felonies. We deem it unnecessary to discuss that phase of the law. The court had elected upon which count appellant should be tried at a previous trial, and had so instructed the jury. He having pleaded not guilty on former trial to all the counts, the court selecting one of them was an election. It is useless to discuss the question as to whether it was necessary or not. The court had matured this into a fact. The first and third counts, however, covered the same transaction. The state’s contention was that appellant was drunk at Jim Loflin’s place, and that the evidence showed there was a social function in vogue; people had gathered and were enjoying themselves. While standing at the door of the room where the dancing was in progress, the state’s evidence goes to show that he used unbecoming language, and that Loflin called the attention of one of the parties who was dancing on the floor to that fact, and he engaged appellant in a fight in which appellant was badly beaten, especially about the mouth and face. He left for home, and his mother bathed his face with a cloth saturated with whisky, and he also took a drink after reaching home, which was his father’s residence. About 9 or 9:30 the sheriff was called from the county seat and reached the place somewhere from 11 to 12 o’clock, and found appellant at his father’s residence and took him in custody. Going along the public road the sheriff, a deputy sheriff and the county attorney engaged appellant in a conversation, detailing his acts and conduct and other matters, to which appellant objected for various reasons. We believe this testimony was inadmissible. He was under arrest, no warning had been given him, and it was a conversation about acts occurring between the parties at Loflin’s. It may be further stated this evidence could not be introduced to show that he was drunk in a public road. Jn the first place, that count had passed out of the information and could not be submitted to the jury, and in the second place he was under' arrest and was carried on the public road, and this conversation occurred an hour and a half or two hours after the matters are said to have occurred at Loflin’s house, and could have no bearing upon his conduct at Loflin’s house, especially under the facts stated.

The county attorney made some remarks in his argument to which serious objections were urged, among other things, he denounced defendant a liar and a thief. The court refused to take any action in the matter, and appellant asked a special charge, which was refused. We are of opinion this charge ought to have been given. The language used by the county attorney was not warranted, especially with reference to being a thief.

Another bill recites that, while appellant was testifying, he was asked by the county attorney if there had not been various indictments and prosecutions against him in Taylor county while he lived in that county; also asked him if he had not been jirosecuted by the county attorney of Eannin county while he lived there, and how many times he had been prosecuted by the present county attorney since he had been in Coleman county, and why did he leave Taylor county, and why he left Fannin county. Various objections were urged to this manner of questioning the witness,, which seems to have been sustained. This was clearly inadmissible so far as this record shows, and should not have been indulged. Without discussing this matter, in support of this finding we refer to the case of Bullington v. State, 180 S. W. 681, where this character of examination of a witness was discussed at some length by Judge Harper, and also in the later case of Faulkner v. State, 189 S. W. 1079, where the matter was again reviewed and the principle laid down in the Bullington Case, supra, reaffirmed. Appellant did not place his character in issue.

The judgment is reversed, and the cause remanded.
      <fcs>For otli^r cases see same tgpic and KEY-NUMBER in all Key-Numbered Digests and Indexes


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

text:
    McGLOTHLIN v. STATE.
    (No. 4594.)
    (Court of Criminal Appeals of Texas.
    Nov. 7, 1917.
    Dissenting Opinion, Dec. 05, 1917.)
    Assault ahd Battery <g=^69 — Criminal Offenses — Defense of Property.
    Where defendant had placed his tenant in possession of a house, the title to which was in dispute, and G., who also claimed the title, attempted to put the prosecuting witness and her husband into possession, defendant’s use of force to prevent the prosecuting witness from entering the house -was not an assault; there being no contention that he used more force than was necessary.
    Prendergast,. J., dissenting.
    Appeal from Criminal District Court, Dallas County; C. A. Pippen, Judge.
    Will McGlothlin was convicted of aggravated assault, and he appeals.
    Reversed and remanded.
    A. iS. Baskett, of Dallas, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of aggravated assault; his punishment being assessed at a fine of $50. He is charged with having committed an assault upon a woman. Without going into specific detail of the matter, and the charges given and refused, we are of opinion the evidence is not sufficient to justify the verdict.

Substantially and briefly stated, appellant and Gregory claimed ownership in four acres •• of land upon which a small house was situated, and it seems both claimed title from a party who until recently occupied it, but had moved to Haskell county. Appellant obtained possession from tbe seller who had moved to Haskell county and had placed a Mexican as his renter in charge of the house. The Mexican was occupying it. Gregory was ; desirous of getting possession of the property, j and undertook to put Mrs. Welch, the alleged | assaulted party, and her husband, in posses- ¡ sion of the house, and get the Mexican out, who was holding it under McGlothlin, or at least to take charge of the house, so as to put Gregory in possession, thus giving him an advantage in any litigation that might arise. Appellant was notified of that at his home in Ft. Worth and at once came upon the scene. When he reached the place, he found Welch had moved some of his personal effects into the house, and was unloading more of such effects with a view of putting those in the house. Mrs. Welch came in a hack with this load of goods, and undertook to go in the house. Appellant was standing in the door. During their interview she undertook to enter the room. He-had his hands across the door, and she claims that he had his fist up and it came down and struck her on the breast. We suppose that she was undertaking to convey the idea that he intentionally struck her; however, she does not say that. If there was any assault it was committed by this act. There was an effort on her part to enter, and by appellant to prevent the entry of Welch and his wife. Mrs. Welch did not succeed in entering the house. They then went around to the opposite side of the house and sat down and had a conversation — the various parties, Gregory, Welch, and appellant. The occurrence at the door came up, and appellant denied striking the woman, and said, if he did, it was unintentional ; that he had no purpose to injure her-, or in any way hurt her.

These matters resulted ultimately in litigation, which seems to he now pending, between Gregory and appellant, as to the ownership of the property. Appellant, through his Mexican tenant, was in possession of the house, and Gregory was undertaking to get possession through Welch and his wife’s occupancy. This was prevented by the act of appellant, and if there was any assault, or his hand or fist struck her during the melée, he says it was unintentional; but, whether or not, it all came up in this way. She was trying to enter, and he was preventing her as best be could, he says, without assaulting her, or without any intent to injure. Under this showing, we are of opinion • that appellant ought not to have been convicted.

The bills of exception with reference to charges are not discussed. Appellant had the right, we think, to use reasonable force to prevent the intrusion upon his possession of the property. There seems to be, even from the standpoint of the state, no contention that he used any more force than was necessary, if he used any.' That has been sufficiently stated, however.

The judgment will be reversed’, and the cause remanded.

PRENDERGAST, J.

(dissenting).

Mrs. Lucy Weigh, the woman whom appellant was convicted of committing an aggravated assault and battery upon, swore, that when she attempted to go in the house appellant’s fist— “came down and struck me, it struck me right here [on the breast]. When he did that, I asked him to consider my condition. I was in the family way. The baby I have in my lap right here now.”

She further said everything was quiet for a few minutes, and Mr. Gregory tried to reason with him. She swore that, when she attempted to get in the house again, his fist— “came down again. I moan that he hit me. * * * When he hit me, his hand was closed.” Mr. Gregory, who was present and saw and heard it all, swore:

“Mrs. Welch started in, and he took his hand and hit her and shoved her back. He struck her somewhere right along here (on her breast] on the front part of her body. * ⅜ ⅜ I told him he ought to be ashamed of himself for striking a lady like he did her in the condition she was in. I don’t remember that he opened his mouth. I took hold of his hand, and I turned around to Mr. Welch, and asked him he didn’t want an officer, and he said he did, and just about that time he [defendant] reached around and struck her again.”

Then he got in a buggy and went off after an officer.

Mr. Welch, the husband of Mrs. Welch, who was present and saw and heard it all, swore:

“She told him [appellant] that her things were there, told him that was her home, and started in, and Mr. McGlothlin knocked her back with his hand, and she started in the second time, and he also knocked her back.”

On cross-examination, he swore:

“I saw Mr. McGlothlin strike my wife. I was about eight feet from her at that time. * * * He struck her in the breast. It was hard enough to stagger her back. She staggered back something like a step. It was just a short time, not over a quarter of a minute or something like that, ' after he struck her the first time, until he struck her again. She started in the second time, and he knocked her back.”

Mr. Welch further testified that he did not resent this beating of his wife by appellant, because he was a law-abiding man, and sent for an officer.

Appellant himself swore on cross-examination that, when Mrs. Welch came up to the door to come in, he was standing there and had hold of the screen door with his left hand.

“At the time, she came up to me, I am not positive whether I had one or two hands on the door. She was insisting on getting in. She said she wanted to get in the house. I wasn’t going to let her get in'. I was determined she was going to stay out, no matter what force I took. I was going to keep her out. I did keep her out.”

It is thus seen that three witnesses swore positively and unequivocally that appellant beat Mrs. Welch up with his fist-; that he struck her in the breast with his fist two separate and distinct licks, swearing “I was determined she was going to stay out, no-matter what force I took.” He had no right to thus beat her up. That the evidence clearly justified his conviction there can be no particle of doubt.

Twelve fair and impartial jurors heard all' this testimony, and saw the witnesses, and heard them when they testified. Upon their oaths they found that appellant had struck and beat her up, as she and the other two-witnesses swore, and that in doing so he violated the law. An able, fair, and impartial judge, who also saw and heard all these witnesses, and heard this testimony, so held. The statute is clear and plain that the “jury are the exclusive judges of the facts in every criminal cause” (O. O. P. art. 734), and “the-jury, in all cases, are the exclusive judges of the facts proved, and of the weight to be given to the testimony” (O. 0. P. art. 786). That statute is just as binding on the judges of this court as any other plain and clear statutory law can be. The judges of this court cannot bé as competent to determine the facts, not hearing or seeing the witnesses, as the jury and judge of the lower court can be. The law says the jury are the exclusive judges of the facts and of the weight to be given to the testimony. But two judges of this court, in effect, by their decision herein, say that the jury are not the exclusive judges of the facts, nor are the jury the exclusive judges of the weight to be given to the testimony; but that they, the judges, and not the jury are the exclusive judges of the facts and the credibility of the witnesses.

The court gave a correct and full charge submitting every issue raised by the testimony in this case. There was no Mexican in the house, nor anywhere near the premises, at the time appellant beat up this woman. After appellant beat her up, she and her husband went around to some outhouses to protect themselves against the cold weather. It was very cold at the time. Appellant refused to let her in the house, where Mr. Gregory had built a fire for her. As soon as Mr. Gregory went off after an officer, appellant had all of her household and kitchen goods moved out of the house and off of the premises. He also moved off of the premises the vehicles in which a part of her goods were held, and in which she rode at the time she went to the house, and put up the fence. Then he went around to where Mr. and Mrs. Welch were sheltering themselves, and attempted to show them a deed he claimed he had to this property. Gregory was not there at the time, but off after an officer, and, while he did not again beat her up there, she swore :

“I told him right then that he hit me twice. He said if he did, he- didn’t know it.”

He swore:

“At the time I understood her to say I had hurt her. I told her, if I did, I didn’t intend to. • I am not positive whether she said I struck her or not. I understood her to say that I hurt her.”

Undoubtedly this case should have been affirmed, and not reversed.
      <©^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    HARPER v. STATE.
    (No. 4673.)
    (Court of Criminal Appeals of Texas.
    Nov. 14, 1917.)
    1. Indictment and Information @=5110(11)— Following Language of Statute — Drunkenness.
    Under Code Cr. Proc. 1911, art. 34, requiring that a complaint shall be reduced to writing and sworn to and give the name of the accused and state the offense charged in plain words and show that the offense was committed in the county in which it is filed, and article 462, relating to allegation of “public place,” a written complaint, charging that accused, on a certain date, in the county committed the offense of drunkenness in “a public place in the streets of a city not his private residence,” substantially in the terms of Pen. Code 1911, art. 204, was sufficient.
    2. Criminal Law <§^>823(1) — Appeal—Harmless Error — Instruction.
    A charge that on conviction defendant should “be in the sum of not more than $100 for each and every offense” omitting the word “fined” after the word “be,” in view of another part of the charge requiring the jury to fix the punishment at a fine in any sum of not more than $100, was not fundamental error.
    Appeal from Rockwall County Court; J. W. Reese, Judge.
    J. A. Harper was convicted of drunkenness in a public place, and lie appeals.
    Affirmed.
    W. B. Wade, of Rockwall, for appellant. B. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

This case originated in the county court of Rockwall county where, on a complaint and information, appellant was charged, and on trial before a jury convicted of drunkenness in a public place.

The record is without bills of exception, and the statement of facts discloses the evidence was conflicting, but that of the state, if believed by the jury, was sufficient to sustain the conviction.

There were exceptions filed to the complaint and information, which contain several counts. The first one only was submitted to the jury, and is therefore the foundation of the prosecution. It in form and in substance is sufficient. Article 34, O. O. P., prescribes the requiSities for a complaint, and, after declaring that it shall be reduced to writing and sworn to, provides that the name of the accused shall be given, and that the offense with which he is charged be stated in plain and intelligible words; that it must appear the offense was committed in the county in which it is made, and within a time not barred by the statute of limitation. The complaint in question is in writing, names the accused, J. A. Harper, fixes the date of the offense as the 19th day of May, 1917, naming the county and state, and describes the offense substantially in the terms of the statute. Article 204, P. O. It is signed by E. W. Hall, affiant. The jurat is as follows:

“Sworn to and subscribed before me this 26th day of June, A. D. 1917, D. T. Bowles, County Attorney, Rockwall county, Texas.”

The term “public place” is stated in the complaint in the following language:

“ ⅜ ⅜ « jn a public place, to wit, the streets of the city of Rockwall, same not then and there being Ms own private residence.”

This under article 462, O. O. P., and the decisions of this court cited under article 204, Vernon’s P. G. p. 109, appears sufficient. Appellant’s suggestion that the jurat was not officially signed is not supported by the record as indicated by the quoted portion of the jurat above.

The court in the first paragraph of its charge stated that the statutes provide that if any person who shall get drunk, or he found in a state of intoxication in any public place, shall be deemed guilty of a misde- ■ meanor, and on conviction before a court of competent jurisdiction “he shall he in a sum of not more than, .$100 for each and every offense.” There is an evident clerical omission of the word “fined.” In the second paragraph of the charge the jury is told, after submitting to them the facts upon which guilt could be predicated,. that their duty would be to fix the punishment at a fine in any sum of not more than $100. No complaint was made of the charge at the time of the trial as provided by the statute, but in the motion in arrest of judgment it is suggested thati the omission of the word “fined” is fundamental error requiring a reversal of the case. The penalty is correctly stated in the part of the charge submitting the case to the jury. In the first paragraph of the charge where the omission occurred it was unnecessary, and our judgment is that the error is not fundamental and not reversible.

The judgment of the lower court is affirmed.


text:
    OYERVIDES v. STATE.
    (No. 4700.)
    (Court of Criminal Appeals of Texas.
    Nov. 21, 1917.)
    1. Indictment and Information <§=»41(3) — Complaint — Sufficiency.
    In a prosecution for aggravated assault on complaint and information, a complaint, alleging that the offense was committed on July 4, “191,” was fatally defective, as in a criminal action the pleadings must charge the date of the offense within the period of limitations.
    2. Indictment and Information <S==>41(3) — Defects in Complaint — Cure.
    Such defect in the complaint was not cured by the information.
    Appeal from County Court, Travis County; D. J. Pickle, Judge.

      Joe Oyervides was convicted of aggravated assault, and he appeals.
    Reversed and cause remanded.
    Paulk & Monroe, of Austin, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

This is a prosecution on complaint and information for the offense of aggravated assault. The complaint was filed July 7, 1917, and fixed the date of the alleged offense in the following language: “On or about the 4th day of July, 191.” ' We think the court was in error in failing to sustain the motion in arrest of judgment based on the insufficiency of this complaint. Complaints of this character have been held insufficient in a number of cases. Collins v. State, 5 Tex. App. 37; Brewer v. State, 5 Tex. App. 248; Vernon’s C. C. P. art. 451, p. 196, note 10. It is essential that the pleadings upon which a criminal action is founded shall charge the date of the offense within the time in which it would not be barred by the statute of limitation. Bradford v. State, 62 Tex. Cr. R. 424, 138 S. W. 118, in which the indictment was held invalid, charging the date as the 19th day of April, one thousand, nine hundred and —. A defect of this description in the complaint is not cured by the information. Lackey v. State, 53 Tex. Cr. R. 459, 110 S. W. 903, and cases there cited

The judgment of the lower court is reversed, and the cause dismissed.
      Cte^For other cases see same topic and KBY-NXJMBBR in all Key-Numbered Digests and Indexes


text:
    LIGON v. STATE.
    (No. 4623.)
    (Court of Criminal Appeals of Texas.
    Nov. 14, 1917.)
    1. Indictment and Information <§=>130— Charging Two Misdemeanoks in Same Complaint and Information.
    The misdemeanors of riot and of unlawful assembly were chargeable in the same complaint and the same information.
    2. Indictment and Information <®=>132(7)— Election Between Offenses Charged in Several Counts.
    In a prosecution by complaint and information for the offense of unlavdul assembly, there being several counts charging the offense, while defendant was also charged with riot, the trial court properly refused to require the state to elect as between the offenses charged in the several counts1.
    3. Criminal Law <§=>622(1) — Application for Severance — Power to Overrule.
    In view of Code Cr. Proc. 1911, art. 791, making defendants charged with the same offense growing out of the same transaction incompetent witnesses for defendant, and Pen. Code 1911, art. 91, providing that coindictees may claim a severance, and, if any one or more be acquitted, he or they may testify in behalf of the others, defendant, _ charged with unlawful assembly, having complied with Code Cr. Proc. 1911, art. 727, providing the procedure for obtaining severance, by averring under oath in his motion therefor that the evidence of his co-defendants charged by separate information would he material to his defense, and that he verily believed that there was not sufficient evidence against them to secure conviction, the trial court was without discretion to overrule defendant’s motion for severance without sufficient reasons, which should be shown in the record.
    Appeal from El Paso County Court; E. B. McClintoek, Judge.
    E. L. Ligón was convicted of the offense of unlawful assembly, and he appeals.
    Judgment reversed, and cause remanded.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was prosecuted under complaint and information for the offense of unlawful assembly, which is defined in our statute (article 435, P. C.) as follows:

“An ‘unlawful assembly’ is the meeting of three or more persons with intent to aid each other by violence, or in any other manner either to commit an offense, or illegally to deprive any person of any right, or to disturb him in the enjoyment thereof.”

There were several counts in the information charging this offense, and in the same information appellant was charged with riot, as defined in article 451, P. C. His conviction was for unlawful assembly, and his punishment fixed at a fine of $100.

In the motion to quash the information it is attacked in a number of grounds. Without reviewing the details, we think that the elements of the offense of unlawful assembly were sufficiently set out in the pleading. The reported decisions of this court with reference to this character of prosecution are listed in 39 Cyc. 832, note 4. It is claimed that, there was vice in the pleading in that the offense of riot, and that of unlawful assembly-were charged in the same proceeding. Both' were misdemeanors and were chargeable ⅛ the same complaint and same information. Alexander v. State, 27 Tex. App. 532, 11 S. W. 628; Warner v. State, 66 Tex. Cr. R. 356, 147 S. W. 265; McKinney v. State, 68 S. W. 176; Vernon’s C. C. P. p. 243.

There was no error in refusing to require the state to elect as between the offenses charged in the several counts. Gould, v. State, 66 Tex. Cr. R. 421, 147 S. W. 247; Tucker v. State, 65 Tex. Cr. R. 627,145 S. W. 611; Sweeney v. State, 59 Tex. Cr. R. 370, 128 S. W. 390; Bivens v. State, 97 S. W. 87 ; Thompson v. State, 32 Tex. Cr. R. 265, 22 S. W. 979; Brown v. State, 38 Tex. Cr. R. 597, 44 S. W. 176; Woodward v. State, 58 Tex. Cr. R. 411, 126 S. W. 270; Vernon’s C. C. P. p. 247.

It was alleged in the information that, in committing the offense charged appellant, acted with a number of other persons named in the pleading. Appellant made a timely motion for a severance and for separate trials, to which motion he attached the separate informations against several coprinci-pals. Article 791, Code Cr. Proc., makes those who were charged with the same offense growing out of the same transaction incompetent witnesses for appellant. And article 791, supra, and article 91, P. C., provide that where so indicted they may claim a severance, and if any one or more be acquitted, they may testify in behalf of the others. Article 727, C. C. P., provides the procedure for obtaining severance. Appellant’s motion was in full compliance with the article last named, averring under oath that the evidence of his codefendants charged by separate information would be material to his defense, and that he verily believed there was not sufficient evidence against them to secure a conviction. The order of trial was suggested in the affidavit, and no opposition filed to it so far as disclosed by the record. There is no reason assigned, so far as the record before us discloses, for the refusal to grant the motion to sever. The appellant having complied with the statute in making his application for a severance, to which the statute entitled him, the trial court was without discretion to overrule it without sufficient reasons, which should be shown in the record. Branch’s Ann. P. C. pp. 375, 376, and cases cited.

Because of the refusal of the court to grant the order of severance, the judgment of the lower court is reversed, and the cause remanded.
      @=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, J.

text:
    HERNDON v. STATE.
    (No. 4612.)
    (Court of Criminal Appeals of Texas.
    Nov. 7, 1917.
    On Motion for Rehearing, Dec. 5, 1917.)
    1. Perjury <®^j21 — Indictment — Names — Variance.
    An indictment for perjury committed by defendant, a witness on the trial of one for arson, alleging in a count not submitted that the burned building belonged to R. B. Tidwell and two others, and in the count submitted that it was owned by Virgil Tidwell and two others, where the allegations as a whole showed that the three owners were the same persons, whether one was named “R. V.,” “R. B.,” or “Virgil,” was not misleading or prejudicial.
    2. Perjury <®=^21 — Indictment—Omission on Word “Willful.”
    Under an indictment for perjury committed on the trial of one for arson, the fact that the indictment for arson, as alleged, omitted the word “willful” from the charging part thereof, did not render that indictment fatally defective, so that defendant for that reason could not be convicted of perjury.
    3. Criminal Law <®=s703 — Preliminary Statement of Prosecuting Attorney — Reference to Confession.
    In a trial for perjury committed in the trial of one for arson, the prosecuting attorney’s preliminary statement to the jury, under Code Or. Proe. 1911, art. 717, subd. 3, that he expected to prove defendant’s written statements, as detailed, was not objectionable on the ground that defendant’s statement or confession, made while he was in jail and without warning, could not be introduced against him, as the preliminary statement did not itself introduce evidence as to defendant’s statement, and as no such statement of defendant was offered in evidence.
    4. Perjury <®=o32(7) — Reproduction of Defendant’s Testimony.
    In a trial for perjury, the court did not err in permitting the court reporter to state, both from his recollection and from his stenographic notes taken at the time, what defendant swore to on the trial of another for arson.
    5. Perjury <§=»29(4) — Indictment—Evidence.
    In a prosecution for perjury in testifying at the trial of one for arson, where the indictment for arson, as set out in the indictment, named the owner of the house which was burned, the admission of the testimony of one of the owners that the house was in possession of and rented to the party on trial for arson and another, as alleged, was not error.
    On Motion for Rehearing.
    6. Criminal Law <&=5d07(1) — Evidence—“Accomplice.”
    To be an accomplice witness a witness must be criminally connected with the'crime on trial, and the mere concealment of a crime, or of knowledge that a crime is to be or has been committed, does not make the one having such knowledge an accomplice.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Accomplice.]
    7. Criminal Law ¡⅞=>507½ — Accomplice’s Testimony — Evidence.
    In a prosecution for perjury in testimony at the trial of one for'arson by defendant, who had been convicted of arson and released to testify against such other, evidence 7held not to show that a witness against defendant was in any sense an accomplice to the perjury, or to the arson of which defendant had been convicted, so as to make his testimony incredible without corroboration.
    Appeal from District Court, Young County ; Wm. N. Bonner, Judge.
    Ole Herndon was convicted.of perjury, and he appeals.
    Affirmed.
    Arnold & Arnold, of Graham, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

This is an appeal from a conviction for perjury. On the night of February 21, 1916, a house in Graham, in said county, belonging to the Tidwells and occupied at the time as a barber shop by Guy Norred and James Self, was set fire to and burned. Shortly thereafter appellant was indicted, tried, and convicted for arson, the burning of said house. Said Guy Norred was also indicted as an accomplice of appellant in said offense of arson. After appellant, under said conviction, had served a short time in the penitentiary, and before the trial of said Norred, he represented to the officers that he ‘had burned said house at the instance of said Norred, who had agreed to pay him $25 to burn it, and would also testify to other material facts showing Norred was guilty as an accomplice, and that if he was pardoned he would so testify, which was the truth, in the case against Norred. He at the time made a complete written statement, signed by him, in which he stated all the facts, as he claimed, about tlie burning, which would clearly show that Norred hired him to burn said building, and that he had burned it at his solicitation, and such state of facts, signed by him, would clearly tend to establish the offense charged against Norred. Thereupon the officers secured a pardon for appellant from his said conviction. Thereafter, upon the trial of Norred on March 12, 1917, he was introduced by the state, after being duly sworn, and testified. Therein he swore the reverse of what he had told the officers were the facts, and among other things he swore that he did not know who set fire to and burned said building; that he did not set fire to-and burn it; that he did not, when said building was burning go therefrom in a northerly direction across the railroad tracks of the Chicago, Rock Island & Gulf Railway Company, and did not go in an easterly direction after crossing said tracks to a cemetery, and did not at the said cemetery mount a horse ridden by Bert Taylor, all of which statements by him were false, and known to be so at the time he so swore, and that they were deliberately and willfully sworn to by him at the time.

Each of these said alleged false statements by him was made the basis of perjury against him in this case. The testimony was amply sufficient to sustain his conviction on each and all of the alleged false statements made the basis of the charge of .perjury against him. The indictment herein was in two counts. The second only was submitted to the jury for a finding. It is therefore unnecessary to state anything about the first. The second, in addition to other matters, fully alleged the said indictment against Norred, his trial thereunder, that appellant was introduced as a witness on that trial and was duly and legally sworn, and that he did deliberately, corruptly, and falsely testify to each of said matters made the basis of perjury herein.

Among other averments, the indictment alleged that it became and was a material inquiry as to who set fire to and burned a certain building in Graham on said date of February 21,1916, “said building being owned by W. I. Tidwell, Horace Tidwell, and Virgil Tidwell, and being used as a barber shop, and being occupied by said Guy Norred and one James Self,” and in other places in said indictment, in alleging the owners of said building, the allegation was, “said building being owned by the said W. I. Tidwell, Horace Tid-well, and Virgil Tidwell, and being used as a barber shop by Guy Norred and James Self.” In said second count the ownership of said building was alleged each time as being owned by the said three Tidwells, giving the name of each, the same in every instance. Appellant made a motion to quash the indictment; one ground being that the allegation therein was that the house belonged to W. I. Tidwell, R. B. Tidwell, and Horace Tidwell, and then, in alleging the names of said owners, instead of alleging R. B. Tidwell as one of the owners, it alleged that Virgil Tidwell, with the other two, were the owners. Evidently appellant’s motion on this ground applied to the first and not the second count. As stated, the second count only was submitted. The first count was not; hence his motion on that ground was correctly overruled.

Another ground to quash was that his name in some places was alleged to be “Oleo” Herndon, and that was not his name, but that “Cle” Herndon was. This ground must also have been based on the first count, and not on the second, because in the second his name is uniformly alleged to be “Ole” Hern-don, and his name therein is not alleged as “Cleo” Herndon. However, as to both of these grounds, taking the allegations of the indictment as a whole, it is certain that the three alleged owners were the same persons, whether one of them was named “R. V.,” “R. B.,” or “Virgil,” because it sufficiently appears from the indictment that in giving their names the word “said” was used, clearly thereby showing that, whether one of the three names was “R. B.,” “R. V.,” or “Virgil,” the same person, and only he, was meant and intended, and appellant could in no way have been misled or prejudiced thereby. 1 Branch’s An. P. G. § 460, and cases there cited by him. See, also, 1 Branch’s An. P. O. p. 242, § 467, and cases there cited. 'See, also, 2 Vernon’s Crim. Statutes, p. 231, and cases there cited.

Said second count, among other things, alleged what the said indictment against Guy Norred charged. Another ground of appellant’s motion to quash is that the indictment against Norred, as alleged herein, omitted the word “willful” from the charging part thereof; and he claims because thereof the indictment therein was fatally defective, and that appellant because thereof could not be convicted of perjury in the trial of that cause. This question has been expressly and repeatedly correctly held against appellant. Kelley v. State, 51 Tex. Cr. R. 507, 103 S. W. 189; Anderson v. State, 24 Tex. App. 705, 7 S. W. 40; Cordway v. State, 25 Tex. App. 405, 8 S. W. 670; Smith v. State, 31 Tex. Cr. R. 315, 20 S. W. 707; Ball v. United States, 163 U. S. 662, 16 Sup. Ct. 1192, 41 L. Ed. 300; State v. Brown, 128 Iowa, 24, 102 N. W. 799; State v. Rowell, 72 Vt. 28, 47 Atl. 1ll, 82 Am. St. Rep. 918; State v. Brown, 68 N. H. 200, 38 Atl. 731.

Article 717, subd. 3, O. O. P., expressly authorizes the prosecuting attorney preliminarily to state to the jury the nature of the accusation against appellant and the facts which are expected to be proved by the state in support thereof. The district attorney, in this case, as authorized by this statute, made such a statement to the jury, and among other things he told them that he expected to prove the written statements made by appellant whic-h are referred to above, which were, in substance, that he committed the said crime of arson, and that said Norred employed him to burn said house, and that he had, before he burned the house, told Bert Taylor that he was going to burn it, and to wait for him at said graveyard, and that after he burned the house he gave his route therefrom, and where Bert Taylor was at the graveyard, and that he got on Taylor’s horse and went to his house, some seven miles in the country, that night, and returned to Graham the next morning, and that while going home with Taylor that night he told him that he had burned the house and that Norred had promised to give him $25 therefor.

Appellant objected to the district attorney making this statement of what he expected to prove, because said purported confession, or statement signed by appellant, was made while he was in custody and in jail, not warned, etc., and that it therefore could not be introduced in evidence against him, and that the district attorney’s recollection of what was stated therein was improper; that the original itself would he the best evidence thereof. As stated, this was a mere preliminary statement by the district attorney of what he expected to prove. He was not then introducing evidence, nor said purported statement signed by appellant. The record discloses that no.such paper was ever intiv-duced in evidence on the trial, and apparently none such was ever offered. Appellant’s objections were mere objections. They were not approved by the judge as a statement of facts. As the district attorney stated what he expected to prove, if, as a matter of fact, he failed to prove it on. the trial, it would have been against the state and in favor of the appellant. The hill does not show that the district attorney said he was going to introduce that statement by appellant. We think the bill shows no reversible error. Himmelfarb v. State, 76 Tex. Cr. R. 178, 174 S. W. 586.

The court did not err in admitting in evidence the indictment against said N'orred, over his objection, as to the appellant’s name and the names of the owners of said house. This question is discussed above.

The court did not err in permitting Mr. Hankerson, the court reporter, to testify, both from his recollection and from his stenographic notes taken at the time, what appellant swore on the Norred trial. 1 Branch’s An. P. O. p. 51, where the rule is stated and the authorities collated.

Neither did the court err in permitting one of the joint owners, Virgil Tidwell, to testify that the house burned was in the possession of, and rented to, said Norred and Self. His objection is that there was no allegation to that effect. The indictment shows that the house was repeatedly alleged to have been in the possession of said Norred and Self.

The testimony, by. several witnesses who were at the fire while the building was burned, was that they smelled oil very strongly; that the house and the barber furniture and towels of said Norred and Self were not entirely consumed; that a day or two, perhaps the second day, after the fire, when the burned stuff was being moved, these towels were found in said barber shop saturated with oil. The court did not err in permitting some of the witnesses to testify that they found, among the towels used by said barbers therein, some saturated with oil. This testimony was admissible.

The judgment is affirmed.

On Motion for Rehearing.

The sole ground set up for rehearing is that the state’s witness Bert Taylor was an accomplice, and that because thereof appellant could not be convicted on his testimony, even though properly corroborated by other testimony, because he was not a credible witness. No such ground was urged in the lower court. Appellant did not object to the court’s charge because of its failure to charge that said witness was an accomplice, or that he had to be corroborated; nor did he ask any special charge submitting any such issue or anything with reference thereto. Mr. Branch, in his 1 An. P. C. p. 360 et seq., lays down correct propositions supported by numerous authorities. One is that, in order to be an accomplice witness, such witness must be criminally connected with the crime on trial (section 702). Again he says:

“The mere concealment of a crime, or the mere concealment of knowledge that a crime is to be or has been committed, does not make the person having such knowledge an accomplice”— citing a large number of cases (section 705).

No evidence in this case shows, or tends to show, that said witness Taylor was a party in any sense to the perjury of which appellant was convicted, nor does it show his participation in any way with the arson of which appellant was originally convicted, as explained in the original opinion. The testimony simply shows that said witness swore that appellant, before the arson was committed, told him he was going to bum the house, and that after he had burned it he told him he had done so. Before appellant burned the house he told said witness, in substance, that he wanted to go home with him that night, and asked him to wait for him at a given point, where he would later meet him and go home with him. Said witness did wait for him at the point indicated; appellant met him there, and went some miles in the country to his home with him, and stayed the balance of that night; they both returning to Graham the next morning. This did not make him an accessory. In other words, the testimony shows that said witness was not an accomplice of appellant to either arson or the pei’jury, of which he was convicted in this case. His knowledge that appellant was going to commit arson, and did

afterwards do so, would in no sense make him an accomplice, so as to make him ah incredible witness in law.

The motion is overruled.
      <&»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: GRAVES, J.

text:
    CARTER-MULLALY TRANSFER CO. et al. v. ROBERTSON et al.
    (No. 7427.)
    (Court of Civil Appeals of Texas. Galveston.
    Oct. 16, 1917.
    Rehearing Denied Nov. 8, 1917.)
    1. Bankruptcy <⅞⅜»20 — State Courts — Receivers — Jtjkisdiction.
    Where a petition in bankruptcy is filed within four months of appointment of a receiver by a state court, when the adjudication in bankruptcy occurs, the bankruptcy court succeeds the state court and the trustee takes over the property.
    2. Bankruptcy @=>152 — Taking over Property of Receivership — Title.
    When a trustee in bankruptcy takes over property in hands of a state receiver, as far as title to property is concerned, the adjudication relates back to the date of the filing of the petition, and makes subject to review only actions of the receiver or the state court appointing him.
    3. Appeal and Error @=>843(1) — Matters Reviewable — M,oot Questions.
    On appeal from a judgment of a state court appointing a receiver, the assignments of error relating to the appointment of the receiver become moot questions, where a petition in bankruptcy has been filed within four months, and they will not be reviewed.
    4. Appeal and JSrror <⅜^>743(1) — Assignment of Errors — Saving Objections — Court Rules.
    Violation of rule 31 of the Rules for the Courts of Civil Appeals (142 S. W. xiii), by not giving pages of the record or brief in the statement of proceedings following assignments of error, prevent^ consideration of such assignments.
    5. Appeal and Error <§=>73& — Multifarious Assignments of Error.
    An assignment of error which attempts to present several separate and distinct grounds of error having no relation to each other is multifarious and bad.
    6. Appeal and Error @=>742(4) — Matters Reviewable — Statements—Bill of Exceptions.
    Assignments of error relating to errors in the admission or rejection of evidence cannot be reviewed, where the statements subjoined do not show that the issues were saved by bill of exceptions.
    7. Receivers @=>3 — Domicile of Corporation — What Court may Appoint.
    In a straight suit on a note expressly payable in the county of suit, a receiver may be appointed as an ancillary remedy, although the domicile of the defendant, a corporation, is in another county.
    8. Continuance @=>24^-Motion for Continuance-Abuse of Discretion.
    Where a continuance to obtain evidence was denied, there was no abuse of discretion, where all the material facts alleged in the motion as a basis for continuance were proved by other testimony.
    9. Corporations @=>487(1) — Ultra Vires Acts — Estoppel.
    Where a corporation ha's borrowed money and used it to advantage for three years, it is estopped to set up that the loan was for an unlawful purpose and ultra vires, especially where there is a presumed finding that the lender did not know of the unlawful use.
    10. Appeal and Error @=u1073(1) — Harmless Error — Provisions in Judgment.
    Where in an action against a corporation and an indorser on its note judgment was had against both, a provision of the judgment that the indorser should have a judgment against the corporation for any amount paid on judgment, without prejudice as to any claim of the corporation against him, if erroneous, was harmless.
    Appeal from District Court, Galveston County; Clay S. Briggs, Judge.
    Suit by J. A. Robertson against the Carter-Mullaly Transfer Company, H. E. Hildebrand, and John M. Roberts. Judgment for plaintiff, and the defendants, except the last mentioned, appeal.
    Affirmed,
    A. J. Bell, of San Antonio, and Jas. B. & Chas: J. Stubbs, of Galveston, for appellants. Cobbs & Cobbs, of San Antonio, and Terry, Cavin & Mills, of Galveston, for appellees.
   GRAVES, J.

This appeal is prosecuted by Carter-Mullaly Transfer Company, a corporation, whose domicile ' and principal office was in Bexar county, Tex., and H. E. Hildebrand, from a joint and several judgment for $31,741.71, obtained in the trial court by appellee, Robertson, against them, together with another, John M. Roberts. Roberts neither answered in the suit, nor appealed from the judgment.

The amount of the judgment represented the balance found by the court to be due upon two notes given by the corporation to appellee, Robertson, certain certificates of stock of the corporation being attached thereto as collateral, which by their terms were payable in Galveston county, and which had been indorsed by the named individuals,' H. B. Hildebrand and John M. Roberts, who were president and secretary treasurer, respectively, of the corporation. Prior to rendition of the judgment — indeed, on the filing of the petition therefor — the court had, upon ex parte application of ap-pellee, appointed in Galveston county a receiver for the corporation.

By agreement of all the parties, the cause was tried before the court without a jury, resulting in the judgment above mentioned, the decree awarding appellee foreclosure of his lien upon the stock so held as collateral to his notes, and granting appellant Hildebrand a like judgment over against the corporation, in event appellee should collect the amount of his judgment against the corporation out of Hildebrand’s property, with the further recitation, however, that Hildebrand’s judgment over against it should in no way preclude or prevent the corporation from thereafter asserting and prosecuting any other claims or causes of action not in this suit litigated it might have against him; while immediate execution was awarded appellee against the individuals, Hildebrand and Roberts, it was further ordered that no present execution issue against the corporation in favor of either appellee or Hildebrand on their several judgments against it, but that these be paid in the ordinary course of the receivership and subject to the further orders of the court.

Appellants admitted the execution and delivery of the two notes, one being for $10,-000 and the other for $15,000, and that they represented money loaned to the corporation by appellee, and, aside from jurisdictional matters and objections to the receivership, and the foreclosure upon the stock, made no defense against the obligations, except to claim that the bulk of the $15,000 loaned on that note was furnished by appellee, with full knowledge of its intended use, to appellant corporation for an unlawful purpose, to wit, with which to buy up the stock and pay the debts of its competitor in the transfer business in San Antonio, the San Antonio Transfer & Taxicab Company, and that consequently the corporation’s act in so borrowing the money and executing the note therefor was ultra vires and void, and the note never became its valid and binding obligation.

Appellee, Robertson, denied that any of the $15,000 so loaned by him was used for any such purpose, or for any unlawful purpose, or that he knew of its intended use for any such purpose, and further pleaded that, if any of it was so used, it was without his knowledge or consent, and that through the purchase therewith of its competitor’s stock, appellant corporation had acquired and used much valuable property and many advantageous contracts and other advantages, from all of which it had profited and received the benefits, and that it was consequently estopped to claim that its act in executing the $15,000 note sued on was ultra vires and not binding upon it; his continued allegation was:

“Plaintiff was wholly ignorant of the purposes for which said obligations had been given, and it was represented to plaintiff by the defendant H. E. Hildebrand, acting for the defendant Carter-Mullaly Transfer Company, and in his capacity as president thereof, that the money derived from said loan was needed in order to take up valid outstanding obligations of said defendant Carter-Mullaly Transfer Company, which if not taken up and satisfied would cause said Carter-Mullaly Transfer Company to fail and be placed in a receivership or in bankruptcy. That at said time said representations were made to plaintiff the entire capital stock of Carter-Mul-laly Transfer .Company was owned by defendants H. E. Hildebrand and John M. Roberts, the former being the president of said corporation, and the latter being the secretary and treasurer, and that said defendants H. E. Hildebrand and John M. Roberts, in their capacities as such president and secretary and treasurer, respectively, acting together and in behalf of the defendant, Carter-Mullaly Transfer Company, made said representations to plaintiff and so induced him to lend the said sum of fifteen thousand dollars ($15,000.00). If said representations so made to him by the said defendants at the time he loaned and advanced said sum of fifteen thousand dollars ($15,000.00) were untrue and incorrect, having received the benefits of the said loan, and the said plaintiff having actually paid the said money to the said defendants, and the money having been used by the defendants in the furtherance and pursuance of the business of the Carter-Mullaly Transfer Company for more than three (8) years, they cannot now assert them in any way questioning or denying the validity of said loan.”

Appellants present the case to the court upon ten assignments of error, numbered in their brief as 1 to 8, inclusive, and 11 and 12. But appellee has filed a motion asking that this court strike out and not consider the assignments so numbered 3, 4, 5, 6, 7, 8, and 11, and reciting as follows:

“Eor grounds of this motion this appellee respectfully shows to the court that since the rendition of the judgment appealed from, all of the questions raised and presented by the foregoing assignments of error have become and are mere moot questions and only academic in their nature, and that as to the same there is no real issue now pending between the parties hereto,, because of the fact that on the 24th day of' April, 1916, the appellant H. E. Hildebrand, together with the San Antonio Hotel Company, Arnold, Cosby & Peyton, and Ed. Steves & Son, filed in the District Court of the United States for the Western District of Texas at its San Antonio Division, their petition in involuntary bankruptcy against the appellant, Carter-Mullaly Transfer Company, praying that the same be duly adjudged a bankrupt, and that its affairs be administered by the bankruptcy court according to the ordinary course and principles of bankruptcy; and because on the 24th day of February, 1917, by an order duly entered by the said District Court of the United States for the Western District of Texas, upon said petition the said Carter-Mullaly Transfer Company was duly and legally adjudicated, adjudged and declared a bankrupt, and on the same day the matter of its bankruptcy was by said court referred, in accordance with the bankruptcy laws of the United States, to Hop. Frank H. Booth, referee in bankruptcy for said division of said court, and on the 16th day of March, 1917, the first meeting of the creditors of said Carter-Mullaly Transfer Company was held before said referee in bankruptcy, and at such meeting A. O. Burnett, of San Antonio. Texas, was duly elected and appointed trustee of the bankrupt estate of said Carter-Mullaly Transfer Company, and duly qualified as such, and was directed to take possession of the assets and property of said bankrupt, from Harry T. Rand, the receiver appointed by the order of the court below in this cause, and on the 28th day of March, 1917, the district court of Galveston county, Tex., for Tenth judicial district, being the court from which this appeal is prosecuted, entered its order upon an application therein filed by the said trustee in bankruptcy, directing and commanding the said Harry T. Rand, as its receiver, to turn over and deliver all of the assets and property of the said Carter-Mullaly Transfer Company in his hands to the said trustee in bankruptcy; and because the said adjudication of bankruptcy and the taking possession of the estate and assets of said Carter-Mullaly Transfer Company by said bankruptcy court and its trustee relate back to and are effective as of April 24, 1916, the date of the filing of the petition for adjudication of bankruptcy, and all of the matters and things complained of in the assignments of error, herein moved to be stricken out, having occurred after the filing of said bankruptcy petition, have now become immaterial and raise only moot and academic questions.”

By proper exhibits the facts alleged are made to appear. It is our conclusion that this motion is well taken and should be granted.

The receiver had been appointed by the ■ district court of Galveston county on April 20, 1916, only four days before the filing in the federal court of the petition in bankruptcy, and it seems to be the settled rule of the bankruptcy law that where the property, at the time of the filing of the petition in bankruptcy, is in the possession of a receiver appointed by a state court within four months prior to the filing of the bankruptcy petition, when the adjudication in bankruptcy occurs, the bankruptcy court succeeds and supersedes the state court, and its trustee takes over from the state receiver the property involved for administration in bankruptcy. Remington on Bankruptcy (2d Ed.) §§ 1602-1605; In re Knight (D. C.) 125 Fed. 35; In re Brown (D. C.) 91 Fed. 358; Wilson v. Parr, 115 Ga. 629, 42 S. E. 5.

And, further, that, in so far as the tifie to the property is concerned, the adjudication relates back to the date of the filing ■of the petition, and supersedes and makes subject to review in the bankruptcy court only actions of the receiver or of the state •court appointing him. Remington on Bankruptcy (2d Ed.) §§ 1117 and 1126; Everett v. Judson, 228 U. S. 474, 33 Sup. Ct. 568, 57 L. Ed. 927, 46 L. R. A. (N. S.) 154; In re Judson, 192 Fed. 834,113 C. C. A. 158; Pratt v. Bothe, 130 Fed. 670, 65 C. C. A. 48; In re Waite-Robbins Motor Co. (D. C.) 192 Fed. 47.

Carter-Mullaly Transfer Company, having been later duly adjudicated a bankrupt on this petition, and its assets and property taken over by the officer of the bankruptcy ■cotirt from the possession and control of the state court’s receiver, and such possession and control relating back to the date of the filing of the petition for adjudication of bankruptcy, which was prior to the trial of this case in the court below on July 15, 1916, we think the contention that all questions as to the validity of the appointment of the receiver and those incident thereto have become moot and academic is sound. That being true, it would be futile and would get nowhere to now determine them upon this appeal.

The situation here presented, that is, the extinguishment pendente lite of the state court’s power and control over the property and assets of the corporation by the superseding authority of the bankruptcy court, as effectively as if they had been in fact destroyed, is in legal result and effect analogous, we think, to those cases where, in such circumstances, the subject-matter of the controversy between the parties has actually ceased to exist, as where the term of an office has expired before determination of the title to it, or where a bridge, the use of which had been enjoined, was destroyed pending appeal from the judgment granting the injunction. S. W. Tel. & Tel. Co. v. Galveston County, 59 S. W. 589; Robinson v. State, 87 Tex. 565, 29 S. W. 649; McWhorter v. Northcutt, 94 Tex. 86, 58 S. W. 720; Lacoste v. Duffy, 49 Tex. 768, 30 Am. Rep. 122.

We think the principle stated in those cases is equally applicable here; but appellants reply that, even if the adjudication of bankruptcy of the corporation did in effect settle and dispose of all questions relating to the state court’s receivership as against it, still the matters in controversy growing out of that same receivership as between appellant Hildebrand and appellee, Robertson, were nevertheless unaffected thereby, and are still as live and undetermined as they ever were; but just how this may be is not pointed out, and no way has independently occurred to us.

While not indicating in just what manner any substantial right of the individual Hildebrand in relation to the corporation’s property could now be properly determined upon this appeal, in the face of the exclusive control and administration of it by the bankruptcy court, which that individual himself invoked prior to the rendition of this appealed from judgment against him, appellants in general opposition to the motion cite and rely upon the recent case of H. & B. V. Ry. Co. v. Hughes, 182 S. W. 23, decided by this court. But, when properly applied, we do not think that decision inveighs against the conclusion we have stated. In that ease there was an appeal by the corporation from an ex parte order appointing a receiver for its properties; the appellee moved to dismiss the appeal because at a later hour on the same day as that on which the order appealed from was entered, a receiver for the property of the appellant corporation was appointed by the United States District Court upon the application of a bondholder of the defendant corporation, and because it appeared that the defendant corporation had, impliedly at least, consented to such an appointment by the United States District Court. It was held that the facts so appearing did not make the question of the validity of the prior order of the district court of Brazoria county, appointing a receiver, a mere moot question, because the corporation appellant had the right to have the validity of the order appointing the receiver by the state court reviewed, and that it made no difference that after the entry of such order another court had also appointed a receiver. The distinction is obvious. In the Hughes Case there was a conflict in jurisdiction between the state and federal courts, the former having first acquired jurisdiction. If the order appointing the receiver in the state court was not appealed from, or the appeal therefrom dismissed, or if the order was left in force, it is plain that under the general rule of comity existing between courts, the state receiver would have retained jurisdiction over the subject-matter of the suit and have proceeded to administer the affairs and control the assets of the corporation. The instant case is entirely different, in that the functions of the receiver appointed by tbe order of tbe court below have been entirely superseded, and all of Ms powers and of tbe powers of tbe court itself over tbe assets of tbe corporation bave been destroyed by operation of lav? through tbe action of tbe bankruptcy court in taking jurisdiction of tbe assets of the corporation. Tbe motion is therefore granted, and tbe assignments enumerated in it are stricken out, and will not be considered.

But tbe grounds stated in this motion to disregard them are not tbe only objections offered to consideration of the particular assignments therein named; attention is further called to tbe fact that no one of them, nor any of tbe various propositions thereunder, is followed by a proper statement of such proceedings as are necessary and sufficient to support them, with a reference to tbe pages either of tbe record or of appellants’ brief, showing where such matters may be found, as required by rule 81 for tbe Courts of Civil Appeals (142 S. W. xiii).

Tbe sixth assignment is cumulatively violative of tbe rules and decisions of our courts as being multifarious, in that it attempts to present several separate and distinct grounds of error having no relation to each other. Morris et al. v. Gal. Electric Co., 194 S. W. 499, and authorities there cited.

Furthermore, there is no sufficient statement subjoined to either tbe seventh, eighth, or eleventh assignments showing that the points and issues therein attempted to be raised were saved by any bill of exceptions appearing in the record; since all three relate to alleged errors in the admission or rejection of evidence, in the absence of' a supporting bill of exceptions, they cannot be reviewed by an appellate1 court. Ford v. Cowan, 64 Tex. 129; Morgan v. Oliver, 80 S. W. 111; Ellis v. Marshall Car Wheel & Foundry Co., 41 Tex. Civ. App. 501, 95 S. W. 689; G., H. & S. A. Ry. Co. v. Pingenot, 142 S. W. 93; Royal Casualty Co. v. Nelson, 153 S. W. 674.

If at liberty, however, to disregard the well-taken objections to consideration of the particular assignments raising those issues, we should bold that the petition did not show upon its face that the sole object of the suit was the appointment of a receiver, as is contended by appellants, nor even that such was its main purpose; but, upon the contrary, that its allegations plainly disclosed a straight suit in the usual form for tbe establishment of liability and recovery upon promissory notes expressly payable in tbe county of the suit, coupled with an application for the appointment of a receiver as an ancillary remedy, and that, under these circumstances, the district court of Galveston county was not without jurisdiction to entertain the application for receivership, notwithstanding the fact that the corporation was domiciled in a different county. Wills Point Mercantile Co. v. Southern Rock Island Plow Co., 31 Tex. Civ. App. 94, 71 S. W. 292, 294; Ripy v. Red Water Lumber Co., 48 Tex. Civ. App. 315, 106 S. W. 476.

There but remain for consideration assignments 1, 2, and 12.

Numbers 1 and 2 present in slightly differing forms the alleged error of the court in overruling appellants’ application for a continuance; but after a careful review of the evidence, we think no error in this respect is shown; the continuance was sought in order to procure the books and records of the corporation and the testimony of absent witnesses for the avowed purpose of supporting and establishing appellants’ previously detailed plea that the greater part of the money borrowed upon the $15,000 note was obtained for the unlawful purpose already outlined, and that the corporation’s act in so borrowing and executing its notk therefor was ultra vires and not binding upon it; but the evidence admitted, taken as a whole, very clearly shows, we think, and that, too, largely upon the testimony of appellant Hildebrand himself, that appellants suffered no real deprivation, and proved upon the trial practically all, and certainly the material facts alleged in their motion as the basis for the desired continuance. Such being the state of the record, no abuse of the court’s discretion in refusing the continuance appears. G., H. & S. A. Ry. Co. v. Robinett, 54 S. W. 263; Kennedy v. Yoe, 39 S. W. 946; H. E. & W. T. Ry. Co. v. Ollis, 37 Tex. Civ. App. 231, 83 S. W. 859.

Moreover, for an additional and much the more potential reason, we think the refusal of the continuance, sought for the purpose it was thus shown to be, constituted no error, because, in the light of what was developed upon the trial, and especially of appellant Hildebrand’s express admissions, appellants, having received, used, and profited by, for more than three years, the proceeds of the $15,000 note, were estopped to deny the appellee’s right to repayment thereof, especially in view of the court’s presumed finding which rested upon ample evidence, that they failed upon the trial to prove that he ever had any knowledge of their intended use of the money loaned them for any unlawful purpose. Bay City Bank & Trust Co. v. Rice-Stix Dry Goods Co., 195 S. W. 344; Taylor Feed Pan Co. v. Bank, 181 S. W. 538; H. L. & L. Co. v. Danley, 131 S. W. 1143; Coppard v. F. & M. St. Bank, 184 S. W. 551. Finally, the court’s further finding that no diligence was shown is likewise fully supported. Both assignments are therefore overruled.

The twelfth and last assignment complains of the recitations in that part of the judgment in favor of appellant Hildebrand over against the corporation, but does not, in our opinion, point out any material error, and it is overruled without detailed discussion; even if the provision that Hildebrand’s judgment against the corporation should, be without prejudice to its right to thereafter assert any other demands or claims it might have against him was unnecessary or erroneous, it is wholly harmless as to any possible effect upon the rights of either appellant here.

Finding no reversible error, the trial court’s judgment is affirmed.

Affirmed.
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