text:
    STANTON v. STATE.
    (Court of Criminal Appeals of Texas.
    May 28, 1913.)
    1. Criminal Law (§*1092*) — Appeai^Bill of Exceptions — Qualification—Review.
    Where a bill of exceptions to a ruling on evidence is accepted by accused with a qualification by the court, which, if true, shows that the facts on which the objection was based are untrue, accused is bound by the qualification and the bill will not be reviewed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2919; Dec. Dig. § 1092.*]
    2. Homicide (§ 159*) — Evidence—III Treatment of Deceased.
    Where accused was charged with killing his divorced wife, evidence of long-continued ill treatment of deceased by accused was admissible.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 297-300; Dec. Dig. § 159.*]
    3. Criminal Law (§ 730*) — Appeal—Misconduct of Attorney — Prejudice.
    In a prosecution of defendant for killing his divorced wife, there was some evidence that two years prior to the homicide he had assaulted her with a hatchet. The record did not show whether the hatchet was introduced in evidence, but the assistant county attorney in argument produced a hatchet, placed it on the table in front of him in presence of the jury, with a pistol with which deceased had been killed by defendant, and stated that defendant had used the hatchet on deceased and had chopped her in the head with it about two years before. On objection the court stopped him and instructed the jury not to consider such remark for any purpose. Held that, in view of such admonition, the statement was not of sufficient gravity to justify a reversal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1693; Dec. Dig. § 730.*]
    4. Homicide (§ 253*) — Evidence.
    In a prosecution for homicide, evidence held to justify a conviction of murder in the first degree.
    [Ed. Note. — For other cases, see Homicide, Cent."Dig. §§ 523-532; Dec. Dig. § 253.*]
    Appeal from Criminal District Court, Dallas County; Barry Miller, Judge.
    Floyd Stanton was convicted of killing Ms divorced wife, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was given the death penalty for killing his divorced wife.

It is not the purpose of this opinion to go into a statement of the evidence, except in the most general way. The evidence, in substance, is that appellant shot his divorced wife nine times, two of the shots were fired after she fell; that while shooting her she ran, he chasing her. They had been married 10 or 12 years, and for the last 2 or 3 years he had been very unkind to her in many ways, beating her and making various assaults upon her. One time on the 19th of June prior to this homicide he had made a vigorous attack upon her with a hatchet, which resulted in her securing a divorce the following September after the aforesaid occurrence on the 19th of June. On the occasion of the homicide she had gone to the place where he was an employé it seems in pursuance of some understanding between them by means of telephonic conversation. Any way she went to where he was at work. He was armed with an automatic pistol. After talking a few minutes, none of which conversation was heard by any of the witnesses, he began shooting her and she ran, and he continued shooting until she was down, and fired two shots at her after she fell. The appellant, testifying to the immediate facts, said that she had continually demanded money of him after they were divorced, and he believed she had been unfaithful to him before the dissolution of the marriage, and that was the occasion of his previous trouble with her and the assaults upon her, and that she had on one or more occasions threatened to kill him if he did not give her all the money she wanted, and that on this particular occasion she had demanded money of him, and had reached in her bosom, as he thought, to draw a pistol or to execute the threats she had made, therefore he began shooting. This is a sufficient statement of the ease to discuss the questions.

There is no attack made on the charge of the court. In the motion for new trial it is claimed the court erred in not giving a special instruction with reference to the argument of counsel for the state.

The first bill of exceptions recites that the state’s witness testified that “some two years ago she had seen the deceased with black eyes and bruises on her throat, and that the •deceased had told her the defendant had caused them.” Various objections were urged to this testimony. The court thus qualifies the bill: “No such statements as the above were made by the witness Tama Johnson. The witness Edgar Johnston testified that several months prior to this killing he saw deceased and defendant in Dallas, and defendant told him he blacked deceased’s eyes. There was no objection to this testimony of Edgar Johnston.” The bill having been accepted with this qualification, there is no error shown. The court certifies in the qualification that the testimony alleged to have been admitted was not admitted at all, and that no such statements were made by deceased.

Another bill recites that while the state’s witness Fuller was testifying he stated that about two years ago the defendant admitted to him that he had mistreated his wife, the deceased, and that his conduct towards the deceased was due to bad whisky and the devil. Various objections were urged to this testimony. The court qualifies the bill by stating no such statement as the above was made by the witness Frank Fuller. He further qualifies it by stating Edgar Johnston was asked this question on cross-examination by the defendant’s attorneys and gave the above testimony. This presents no error, and it is unnecessary to discuss it.

The long-continued ill treatment of the deceased by the appellant however, was admissible under a long line of cases in this state. See Hamilton v. State, 41 Tex. Cr. R. 644, for collation of authorities page 652, 58 S. W. 926.

Another bill recites that Johnnie Johnson was permitted to testify to the details of an assault on the 19th day of June, 1912, in Kaufman county, made by defendant on his wife, the deceased, for which the defendant had been tried in the district court of Kaufman county and convicted and sentenced to two years’ confinement in the state penitentiary; and, in addition to testifying said charge had been filed against the defendant in Kaufman county, she further testified that 'she had witnessed the assault made by the defendant on deceased; that he struck her on the head six times with a hatchet; that she was in bed a month as a result of same. It is unnecessary to state the objections urged to this. The court qualifies this bill by stating : “The court did not permit the state to prove the details of the trouble by this witness nor the fact that defendant had been given two years in the penitentiary, nor the fact that defendant had been tried in Kaufman county for this offense, nor the fact that defendant had been charged with this offense. The court stated to the jury, in regard to the testimony offered, the following: ‘The Court: Without going into the details, I will permit the state if it can to show that the defendant assaulted her on the 19th day of June of this year.’ ” As this bill is qualified, there is nothing to consider.

Another bill recites while Marshall Stanton, a witness for the defendant, was testifying on cross-examination, he was permitted to testify that the defendant at a time when defendant and witness were small boys, witness being a brother of defendant, the defendant struck the witness in the face with the result of knocking one of his eyes out; said witness appearing to the jury to have only one eye. Witness further testified that he was 37 years of age, and that the assault made upon him by defendant was when he and defendant were small boys. Various objections were urged to this testimony. The court signs this bill but qualifies it in this manner: “The defense was being put into the case that defendant was of unsound mind and the state was attempting to show defendant was of severe temper and mean. The state asked the following question on cross-examination. The testimony of the witness, Marshall Stanton, on the point mentioned is as follows: ‘Now isn’t it a fact that he has got a bad temper and one time lie got mad at you and knocked one of your eyes out, and as a consequence you have got a glass eye?’ The witness answered: ‘Yes, sir; and I have always laid it to his ignorance and my father told me not to have anything to do with him.’ There was no objection or exception taken to this testimony.” As this bill is qualified and accepted by appellant as being correct, there is nothing in it for revision. The court certifies there was no objection to the testimony that did go before the jury.

Another bill recites that during the argument of the assistant county attorney Roak he produced a hatchet and placed the same upon the table in front of him and in the immediate presence of the jury, alongside of a gun with which the deceased was killed by the defendant, and in his argument told the jury that the defendant had used said hatchet on the deceased and had chopped her in the head with the same in Kaufman county about two years ago, to which action of the county attorney the defendant then and there objected,' and asked a special charge as follows: “You are instructed that you will not for any purpose consider the remarks of the counsel for the state wherein counsel for the state speaks of the defendant having chopped the deceased Naomi Stanton in the head with a hatchet in the town of Terrell, Tex.” — which was refused by the court. This bill is qualified as follows: “During the argument Assistant County Attorney Roak did pick up the hatchet, but was instructed by the court to not refer to it, and the court then and there instructed the jury to disregard the statement and action of Mr. Roak in reference to the hatchet.” This bill as qualified we think shows no reversible error. This bill fails to show whether the hatchet was produced in evidence before the jury or not. If it was in evidence before the jury, of course the assistant county attorney had a right to talk about it, but, if it had not been introduced in evidence, of course it would not be permissible for the state’s counsel to have it before the jury or discuss it before the jury. It would have no place in the trial; but, if it was not introduced, then as the bill is qualified by the judge we are of the opinion it is not of a sufficiently injurious nature to require a reversal of the judgment. It seems that immediately upon objection by defendant the court ordered counsel not to use the hatchet and instructed the jury not to consider it. Therefore we are of opinion that under the circumstances it was not of sufficient gravity to require a reversal of the judgment for this matter alone. The next bill is practically of the same nature and about the same matter.

These are the questions submitted for reversal, except the general allegations that the evidence is not sufficient to support the conviction. As before stated, we deem it unnecessary to take up the details of the homicide and what led to it, but the long course of ill treatment, cruelty, attacks, and assaults on her by the defendant and the attendant circumstances of the homicide were sufficient to authorize the jury to find appellant guilty of murder in the first degree.

Finding no such error in the record as we think would require the court to reverse the judgment, it is ordered that it be affirmed.


source: Caselaw Access Project

author: PRENDERGAST, J.

license: Public Domain

text:
    STEWART v. STATE.
    (Court of Criminal Appeals of Texas.
    June 27, 1913.)
    1. Criminal Law (§ 1091) — 1Trial—Improp-er Argument of District Attorney — Review — Bill of Exceptions.
    A bill of exceptions complaining of the closing argument of the district attorney must disclose the circumstances under which the objectionable argument was made.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943 ; Dec. Dig. § 1091.]
    2. Criminal Law (§ 728) — Trial—Improper Argument — Objections—Review.
    Objections to the closing argument of the district attorney will not be considered on appeal, where no written charge was requested requiring the jury to disregard it.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1689-1691; Dec. Dig. § 728.]
    3. Homicide (§ 309) — Evidence — Instructions.
    Where the facts created in the mind of the trial judge a doubt as to the necessity of a charge on manslaughter on a trial for murder, the doubt must be resolved in accused’s favor and a charge on manslaughter given.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 649, 650, 652-655; Dec. Dig. § 309.]
    4. Homicide (§ 340) — Evidence — Instruct tions. .
    The error in submitting the issue of manslaughter, while the evidence only shows accused’s guilt of murder in the second degree or self-defense relied on by him, is not prejudicial to accused convicted of manslaughter.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 715-717, 720; Dec. Dig. § 340.]
    5. Homicide (§ 236) — Evidence — Deadly Weapon — Question for Jury.
    Evidence held to authorize a finding that a knife with which accused killed decedent was a deadly weapon.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 495-499; Dec. Dig. § 236.]
    6. Homicide (§ 340) — Manslaughter — Instructions — Objections.
    An instruction on manslaughter which directs an acquittal on the jury, believing that the mind of accused was agitated by anger, rage, resentment, or terror, regardless of what caused or produced the mental condition, is more favorable to accused than she is entitled to, and she cannot complain thereof. -
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 715-717, 720; Dec. Dig. § 340.]
    7. Homicide (§ 340) — Self-Defense — Instructions.
    An instruction on self-defense, that the jury must acquit accused if she cut decedent under such circumstances as would authorize her to do so in self-defense, or if decedent first cut her, is more favorable than accused is entitled to, and she cannot complain thereof.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. §§ 715-717, 720; Dec. Dig. § 340.]
    Appeal from Criminal District Court, Harris County; Sam’l J. Styles, Special Judge.
    Mary Stewart was convicted of manslaughter, and she appeals.
    Affirmed.
    Green & Boyd, of Houston, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

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

   PRENDERGAST, J.

Upon a trial for murder appellant was convicted of manslaughter and her penalty fixed at the lowest prescribed by law.

Appellant has but one bill of exception. It is to this language used by the district attorney in his closing argument to the jury: “The defendant seems to have a local reputation of being a cutter.” The circumstances under which this was said the bill in no way discloses, nor does it disclose anything else in the case so as to require this court to pass upon the bill; but in any event it presents no error. No written charge was requested requiring the jury not to consider it. House v. State, 19 Tex. App. 239; Tweedle v. State, 29 Tex. App. 591, 16 S. W. 544; Bass v. State, 16 Tex. App. 69; Clayton v. State, 149 S. W. 122, 123, and cases there cited. If we could look to the record it would show that the district attorney probably had the right to make use of such language in his argument, for the record would show that appellant killed the deceased by stabbing and cutting her, and that some time prior to that she had cut her.

It would serve no useful purpose to recite the evidence in this case. We have carefully considered it, and it is amply sufficient to sustain the verdict of murder in the second degree, as well as that of manslaughter. The evidence amply shows the corpus delicti. The uncontroverted proof shows that appellant stabbed deceased in a vital part of her body. As one witness expresses it, with “a large pocket knife, awful large,” and cut and slashed her several times therewith, from which she almost immediately fell in the street and died before an ambulance could reach her to take her to a hospital. There is no intimation that she died or was killed in any other way except at the hands of appellant. The evidence clearly shows, as stated above, that the jury could find that the knife with which she killed deceased was a deadly weapon. The knife with which the killing was done, it seems, was not produced and introduced in evidence, though the one with which deceased, in the fight, cut appellant was produced and introduced, and all the evidence in the case shows that it was a large spring-back knife, and the witnesses for the state showed that the knife with which appellant killed deceased was the same kind of knife.

Appellant complains that the evidence did not raise manslaughter, and the court erred in charging thereon at all. His contention in effect is that the evidence showed, not manslaughter, but, from the state’s standpoint, murder in the second degree only. The court charged on murder in the second degree —the state waiving murder in the first— manslaughter, and self-defense. Appellant’s only defense was self-defense. We are inclined to believe from the evidence that manslaughter was raised and should have been charged by the court. As stated by Judge White in section 801a, subdivision 2, p. 520, of his O. G. P., if the facts proved create a doubt in the mind of the trial judge as to the necessity of a charge on manslaughter in a trial for murder, the doubt should be resolved in favor of the accused and such charge be given. He cites a large number of cases in support of this proposition. Doubtless, the trial court in this instance acted upon this proposition, and we are not prepared to say that he was not justified in doing so. However, if, as contended by appellant, the evidence showed, from the state’s standpoint, murder in the second degree and not manslaughter, she is in no position to complain, because the court submitting manslaughter was in her favor and not against her. This court in a great many cases has held, as stated by Judge White in section 807 of his Ann. G. G. P.: “Though there are decisions of this court holding that an erroneous charge which inures to the benefit of the accused, if excepted to, constitutes reversible error, a proper construction of articles” 735 to 743, inclusive, “does not warrant such a conclusion where the error excepted to is harmless or beneficial to the defendant.” And he cites a large number of cases to that effect.

We have in many recent cases reaffirmed and reiterated this principle. Where the evidence “establishes murder on express malice and murder in the first degree, this does not constitute such variance between the allegations and proof as would entitle defendant to an acquittal; but he may legally be convicted upon such proof of murder in the second degree.” Woodward v. State, 54 Tex. Cr. R. 88, 111 S. W. 942. Again, “it was not error on the part of the court to instruct the jury that although the evidence might show appellant guilty of murder upon express malice, yet that would constitute no reason for his acquittal; that they could on such testimony find him guilty of murder in the second degree.” Moore v. State, 52 Tex. Cr. R. 342, 107 S. W. 543. So we say in this case, even if the evidence from the state’s standpoint showed murder in the second degree, it would sustain a conviction for manslaughter.

The court, while not copying the statute-literally defining manslaughter, in his charge defining it he did so in substance and in ef-feet as applicable to this case. Tbe charge also accurately defined adequate cause as prescribed by the statute. There is no error pointed out against this charge.

The court also correctly charged what it took to constitute a deadly weapon as has many times been approved by this court. White’s P. O. § 1298. And as stated above, the evidence was sufficient to establish that the knife with which appellant killed deceased was a deadly weapon, or authorized the jury to so find.

In submitting manslaughter to the jury for a finding the court charged:

“If you believe from the evidence, beyond a reasonable doubt, that the defendant, Mary Stewart, in the county of Harris and state of Texas, on or about the 21st day of June, 1912, did, with a knife, the same being then and there a ‘deadly weapon’, as that term is herein defined, unlawfully cut and thereby kill the said Ella Jones, and you further believe from all the evidence that at the time of such killing, if any, the mind of the defendant was agitated by either of the emotions of the mind known as anger, rage, resentment, or terror, rendering it incapable of cool reflection, then you will find the defendant guilty of manslaughter, and assess her punishment at confinement in the penitentiary for a term not less than two nor more than five years. If you believe beyond a reasonable doubt that the defendant is guilty of some grade of culpable homicide, but you have a reasonable doubt as to whether she is guilty of murder in the second degree or manslaughter, you should not find her guilty of a higher grade of offense than manslaughter.”

Appellant’s complaint of this charge is that it instructs the jury that if they believe the mind of the defendant was agitated by anger, rage, resentment, or terror, regardless of what caused or produced the condition, etc. Even if this be true, the charge in that respect is more favorable to appellant than the (aw authorized, and being so, she cannot justly complain thereof. There is no intimation in this charge as contended by appellant that said instruction assumes that she is guilty of manslaughter. This charge, as a whole, is as favorable, if not more so, to appellant than the facts and law authorize.

The only other complaint by appellant is to the charge of the court on self-defense. The court charged: “If you believe from the evidence that the defendant, Mhry Stewart, did, with a knife, cut and thereby kill the said Ella Jones, and you further believe from the evidence that at the time of such cutting, if any, the said Ella Jones did make a demonstration that induced the defendant to believe, viewed by you from the defendant’s standpoint at the time, that she, the said Ella Jones, was about to attack her and inflict death or serious bodily injury upon her, or if you believe from the evidence that the said Ella Jones did first cut the defendant, then you are charged that the defendant had the right to cut the said Ella Jones, and continue to cut her as long as the danger, if any, or apparent danger, if any, existed, and she should not be required to retreat in order to avoid the necessity or apparent necessity of cutting the said Ella Jones; and if you so find you will acquit the defendant.” Appellant’s complaint in substance of this charge is that it authorized her acquittal if she cut deceased, and does not authorize her acquittal if she killed her by cutting her.

What we have said about the other charges above is equally applicable to this. The charge is really more favorable to appellant than authorized by the law and evidence, and it, in effect, as is shown, tells the jury to acquit her if appellant cut deceased under such circumstances as would authorize her to do so in self-defense, or if deceased first cut her. We see no ground of complaint whatever by appellant on this score.

There being no reversible error, the judgment is affirmed.


author: HARDER, J.

text:
    BAKER v. STATE.
    (Court of Criminal Appeals of Texas.
    June 11, 1913.)
    1. Constitutional Law (§ 58) — Departments on Government — Interference with Pardoning Power oe-Governor — Statutes.
    The act of the Thirty-Third Legislature providing that if, before trial, accused request in writing- that the issue whether he has been convicted of a felony shall be submitted to the jury, and if they find he has not been convicted, they may find that no punishment shall be assessed, if within a given period he commits no further offense, is within the legislative power vested by Const, art. 3, § 1, in the Legislature to fix by law the punishment of offenses, and merely provides that in given contingencies no punishment shall be suffered for the first violation of a penal law, but does not interfere with the pardoning power conferred by the Constitution on the Governor.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 86-88; Dec. Dig. § 58.]
    2. Statutes (§ 141) — Amendments.
    Though the Constitution provides that no law shall be revised or amended by reference to its title, but in amending laws the section amended shall be re-enacted, the Legislature may by a general law provide that no punishment shall be assessed on the jury finding that it is accused’s first offense, and thereby make such provision applicable to the statutes punishing offenses.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 48, 198, 209; Dec. Dig. § 141.]
    3. Jury (§ 31) — Right to Trial by- Jury-Statutes — Validity.
    The act of the Thirty-Third Legislature authorizing a suspension of sentence on the jury finding that it is accused’s first offense is a part of each article of the Code prescribing punishment and provides that the jury in passing on the guilt or innocence of accused shall hear evidence as to the life of accused and determine the facts, and preserves inviolate the right of trial by jury guaranteed by- Const. Bill of Rights.
    [Ed. Note. — For other eases, see Jury, Gent. Dig. §§ 2CWR219; Dec. Dig. § 31.]
    4. Criminal Law (§ 992) — 'Verdict—Judgment.
    The court cannot accept a verdict and permit it to stand and yet refuse to abide by it and impose a sentence not authorized thereby.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2519; Dec. Dig. § 992.]
    Appeal from Criminal District Court, Harris County; O. W. Robinson, Judge.
    John Balter was convicted of burglary and he appeals.
    Reversed and remanded.
    W. W. Wander, of Houston, for appellant. C. E. Lane, Asst. Atty. 6en., for the State.

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

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

   HARDER, J.

Appellant was indicted, charged with burglary. The offense is alleged to have occurred on the 9th of last February, but he was not tried until the 14th day of March. What is known as the “Suspended Sentence” law had been passed when appellant was tried, and, it carrying the emergency clause, had gone into effect. Appellant before the trial began filed a written request, in substance, as follows: “Now comes the defendant in the above styled and numbered cause, and being then and there charged by indictment with the offense of burglary other than a private residence at night, and shows to the court, that he has never been convicted of a felony in this state or in other state, and prays that, the court instruct the jury in this case that if they find him guilty as charged in the indictment and the punishment does not exceed five years, that the said jury suspend his sentence during good behavior during the time, if any, the jury shall assess.”

In accordance with the request the court instructed the jury: “You are instructed that under the law of this state, where the proof shows the defendant is charged with burglary and that he has never been convicted of a felony in this state or in any other state, the jury has the power to delay the sentence in the case by recommending to the court in their verdict to delay sentence provided the verdict of the jury is confinement in the penitenitary for a period of not more than five years, therefore, if you find the defendant guilty of burglary as charged in the indictment and the punishment assessed by you is not more than five years, and if you further find that the defendant has never been convicted of a felony in this state or in any other state, then it is in your power to have the sentence suspended by recommending to the court that the sentence be so suspended. If you desire the sentence suspended let your verdict show that you find from the evidence that the defendant has never before been convicted of a felony in this state or in any other state and let your verdict further recommend the suspension of the sentence.”

The jury promptly returned the following verdict: “We, the jury, find John Baker guilty and assess his punishment at two years’ confinement in the state penitentiary, and further find from the evidence that he has never before been convicted of a felony in this state or in any other state, and recommend suspension of sentence.”

The court, after submitting the issue, upon reflection, held the act unconstitutional, and sentenced appellant to the penitentiary, regardless of the finding of the jury, to which action of the court appellant reserved a bill of exceptions, and brings the question to us on appeal. In approving the bill the trial judge states his reasons in a forceful and able manner. He says:

“This bill of exceptions is approved with the following explanation: The court is of the opinion that the act passed by the Thirty-Third Legislature, known as the ‘Suspended Sentence Law,’ being Senate Bill No. 5, is unconstitutional, and that it is subject to the same objections and in conflict with the same provisions of the Constitution as was the suspended sentence law passed by the Thirty-Second Legislature.
“With this belief, I have fixed the recognizance of the defendant on appeal in the nominal sum of ¡¡>10, which he has given, so that my ruling might work no hardship, and that the question might be fairly and squarely presented to the appellate court for decision.
“My opinion is that the effect of this act is, if valid, to force the district judges to grant a conditional pardon during the time of the duration of the term of years fixed by the verdict of the jury when they recommend the suspension of the sentence, and to force the district judges to grant an absolute pardon after the term of years so fixed has expired upon the defendant showing that he is not under indictment for another felony, and that he has not been convicted of any other felony.
“The pardoning power belongs to the Governor, and no court in Texas can exercise it by indefinitely suspending the sentence of a convicted criminal, the suspension being subject to revocation only upon his being, during the suspension, finally convicted of another felony.
“This act also provides that after the expiration of the time assessed as punishment by the jury, the defendant may make an application for a new trial and dismissal of the casé, and upon allegation and proof that since his former trial and conviction he has not been convicted of any other felony, and there is not then pending against him any other felony charge, the court shall then grant a new trial and dismiss the case, and thus grant an absolute pardon, releasing the punishment and wiping out of existence the suilt.
“The verdict of the jury recommending the suspension of sentence under the former act had the effect only of conferring upon the court the power to consider whether he would suspend the sentence, while the present act required the court to suspend sentence in all cases when recommended by the jury in their verdict; the court having no discretion in the matter, but being bound by the verdict of the jury. The effect, therefore, of the present act is to confer arbitrarily upon the jury in the first instance the power to suspend the sentence by requiring the court to follow their recommendation in all cases, and second, to force the court, when the allegations and proof stated is made, to grant in effect an absolute pardon. The exercise of clemency ¡is required of the court, and not invited, when the motion to set aside the verdict and for dismissal is made upon the grounds heretofore mentioned.
“The whole effect of the act is to undertake to confer upon the jury in the first instance and upon the court in the second the power to suspend the sentence of a convicted criminal, not to preserve the legal rights of the defendant, or because of the pendency of a motion for new trial, but merely for clemency.
“This act, like the former act, is contrary to article 4, § 11, of the Constitution of this state, which provides that in all criminal cases except treason and impeachment the Governor shall have power after conviction to grant pardons. The court is of the opinion that under this provision of the Constitution the Governor has the power, if he sees fit to exercise it, to grant a pardon, after, conviction by the jury and judgment on the verdict, before sentence or while the case is pending on appeal.
“This pardon may be either absolute or conditional, and except as to cases of treason and impeachment is not limited in criminal eases except that, as stated in Camron v. State, 32 Tex. Cr. R. 182 [22 S. W. 682, 40 Am. St. Rep. 763], ‘the pardoning power can only be invoked after conviction.’ In the case of Snodgrass v. State, 150 S. W. 172, 41 L. R. A. (N. S.) 1144, the Court of Criminal Appeals, to my mind, conclusively demonstrates that the words ‘after conviction’ do not embrace the sentence, but simply mean the verdict of conviction and the judgment on the verdict, the opinion clearly showing that from our first Code a pardon was a legal reason to be interpos.ed in bar of sentence, and that subsequent Constitutions and Codes had been adopted and revised with the same provisions, thereby adopting its construction.
“In Blair v. Commonwealth, 66 Va. 850, it was held that the Governor had authority to pardon a person convicted of a felony by the verdict of a jury before sentence was passed upon him by the court. In Cole v. State [84 Ark. 473] 106 S. W. 673, a pardon was held valid which was granted while the appeal of the defendant was pending in the Supreme Court of Arkansas, the Constitution of that state giving the Governor power to pardon ‘after conviction.’ In Parker v. State [103 Tenn. 547], 53 S. W. 1092, the defendant introduced a pardon in bar of sentence and the Supreme Court of Tennessee held that he was entitled to then plead it. In Ex parte Collins [94 Mo. 22] 6 S. W. 345, the Supreme Court of Missouri held that the words ‘after conviction’ as contained in the Constitution giving the Governor the power to pardon after conviction mean after the return of a verdict of guilty. In Spafford v. Benzie Circuit Judge, 136 Mich. 25, 98 N. W. 741, the defendant before sentence received a pardon from the Governor which recited that he had been convicted and sentenced, whereas he had not been sentenced. The court held that the Governor had power to pardon before sentence. The Michigan Constitution limits the pardoning power so that a pardon can only be legally issued after conviction. In People v. Marsh et al., 125 Mich. 410, 84 N. W. 472 [51 L. R. A. 461, 84 Am. St. Rep. 584], the pardon was issued after verdict and before sentence and it was contended that under the Constitution of Michigan which gave the Governor power to pardon after conviction that he had not authority to grant a conditional pardon prior to the sentence where the conditions were to be performed subsequent to the taking effect of the pardon. The court, citing Com. v. Lockwood, 109 Mass. 323, 12 Am. Rep. 699, held that there had been a conviction within the meaning of the Constitution so that executive clemency might be invoked, and held the pardon valid. In Com. v. Lockwood, supra, the court said that the ordinary meaning of .the word ‘conviction,’ when used to designate a particular stage of a criminal prosecution triable by a jury, is the confession of the accused in open court or the verdict returned against him by the jury which ascertains and publishes the fact of his guilt, while ‘judgment’ or ‘sentence’, is the appropriate word to denote the action of the court before which the trial is had declaring the consequences to the convict of the fact thus ascertained. The Constitution of Massachusetts provided that no pardon granted ‘before conviction’ should be of avail, and in this case Lockwood pleaded a pardon after verdict and before sentence, and it was held valid. In Manlove v. State [153 Ind. 80] 53 N. E. 385, the defendant was convicted of seduction, and was sentenced and appealed, and pending appeal accepted a pardon from the Governor conditioned on good behavior, and his appeal was dismissed for this reason. In State v. Alexander, 76 N. C. 231, 22 Am. Rep. 675, the Constitution provided that the Governor should have power to pardon ‘after conviction,’ and Alexander was pardoned pending his appeal and it was held valid.
“In this ease the meaning of the word ‘convicted’ was aided by other prpvisions of the Constitution, the same as the same word in our Constitution is aided by the provisions of our Code as to pleas in bar of sentence, and the adoption of subsequent Constitutions recognizing the legislative construction of the term ‘after conviction.’ That the word ‘conviction’ was not used in the Constitution as demanding a sentence is clearly shown by the Snodgrass Case, supra, and it is also to be inferred from the fact that no sentence is necessary in a misdemeanor case, but it seems clear that it was only meant to mean that the Governor had no power to pardon ‘before conviction,’ and the statutes and previous Constitutions and the decisions show that such was the legal understanding and use of those words at the time of the adoption of the Constitution, so far as they relate to the pardoning power. In Gilmore v. State, 3 Okl. Cr. 639, 108 Pac. 416, 139 Am. St. Rep. 981, it is held that where a’ pardon is granted and accepted and brought to the attention of the appellate court pending the appeal that the appeal will be dismissed. In Campion v. Gillan [79 Neb. 364] 112 N. W. 585 [11 L. R. A. (N. S.) 865, 126 Am. St Rep. 667, 16 Ann. Cas. 319], it is not clear that the pardon was granted before sentence. It was said that there should be a judgment on the verdict and a sentence, but the Constitution of Nebraska requires that the Governor shall communicate to the Legislature each case of pardon granted, stating the sentence and its date, while in Texas it is only required that the Governor shall file in the office of the Secretary of State his reasons for granting the pardon.
“Whether the defendant was a proper subject for clemency was left to the discretion of the judge under the former suspended sentence law, while in the act now in question the jury is the final arbiter whether the defendant is so fit. Under the former act if the jury recommended a suspension of the sentence and the judge saw fit to adopt their recommendation the judge declined to pronounce sentence, and defendant was released pending good behavior. Under the present act if the jury recommends suspension the judge is without discretion, but is required to omit the sentence of final judgment, and is without authority to ever pronounce sentence on the verdict unless pending the suspension the defendant should be convicted of another felony. If the defendant is charged with another felony during the suspension of sentence, and same is pending when he seeks his absolute pardon from the court, then this act makes provision to further suspend the sentence to await the final disposition of such other prosecution, but there is no provision to ever sentence the defendant should such other prosecution terminate adversely to the defendant. The only time the court could ever sentence a convicted defendant under suspended sentence is upon final conviction of the defendant of any other felony pending the suspension of sentence.
“The word ‘conviction’ is used in our Code with different meanings. Article 321 of the Code of 1911 makes it a felony for any officer, jailor, or guard, who has the legal custody of any person ‘convicted’ of a felony-less than capital to willfully permit him to-escape. If correctly construed, the word ‘convicted’ would mean after verdict of conviction, and the fact that the prisoner had not . been sentenced would be a lame defense.
“The statute making a person incompetent to testify who has been or may be convicted of felony has been construed to mean that sentence has been passed and has become-final, .
“I do not deem it necessary to refer to-these cases further than to say the difference between a conviction necessary to entitle a person to legally receive a pardon from the Governor and a conviction which carried with it civil disabilities are clearly two different matters; the distinction being clearly drawn and discussed in the opinion by the appellate court of this state in the .Snodgrass Case above referred to.
“Enough has been stated to show that this act is also contrary to the Bill of Rights, section 28 of which is: ‘No power of suspending laws in this state shall be exercised except by the Legislature.’ The strength of this section of the Bill of Rights is emphasized when it is remembered that it formerly read ‘by the Legislature or its authority.’ Here this act seeks to confer upon the jury the arbitrary power to suspend a sentence which the law requires shall be passed upon a convicted criminal, and this power may be exercised by the jury in a way not responsive to any written law uniform and equal in its-operation, but arbitrarily. Two juries might on the same testimony and the same charge,, where two defendants were of equal age and no apparent difference in habits or in any other respect, suspend the sentence as to one and decline to do it as to another. The Legislature cannot delegate this power to the juries to suspend the operation of a criminal law of this state by- leaving it to their arbitrary whim, caprice, or judgment as to when they will pronounce a defendant guilty and! then in the same verdict grant a conditional pardon.”

If the learned trial judge is correct that this is an effort to suspend or remit punishment after verdict of conviction and penalty fixed, his contention should be sustained. But is this a correct construction of Senate Bill No. 5, as passed by the Thirty-Third Legislature? The bill in terms provides that in certain eases, if the person on trial requests it be done before the trial is begun, the court shall submit certain matters to the jury for their determination, and upon which they may base a verdict and recommendation.

There is no doubt but what the Constitution confers upon the Governor the sole and exclusive right to grant pardons, and that the Legislature, courts, nor juries can usurp nor have that authority conferred on them. But the Constitution also confers upon the Legislature the authority and power to define crimes and fix the punishment therefor, and when they enact a law defining a crime and fixing the penalty, unless vetoed by the Governor, it becomes the law of the land. They would have the authority and power to define burglary as an offense, and provide that when a person is charged with that offense he may, by showing that this was his first offense, be not punished at all, but that for fhe second or any subsequent offense ^e should be punished as the act should provide. The Thirty-Third Legislature in' Senate Bill No. 5 does not seek to relieve from punishment after conviction.⅛ but by a general provision to provide that in certain character of cases no punishment should be assessed unless the person on trial should again violate the law, and would make the burglary statute read as follows as applicable to this ease: “The offense of burglary is constituted by entering a house by force with the intent to commit the crime of theft, and the punishment for the crime shall be imprisonment in the penitentiary not less than two nor more than twelve years, provided that if before trial the person charged with the offense shall request in writing that the issue of whether or not he. has ever before been convicted of a felony shall be submitted to the jury, and if the jury shall find that such person ought not in any event be confined in the penitentiary for a longer time than five years, and has never before been convicted of a felony, they may in their verdict further find that no punishment shall, be assessed, if within a given period of time he commits no other offense against the laws of this state; but in the event he shall commit another offense, then he should be punished by confinement in the penitentiary for a given period of time as stated in their verdict.”

While the power of the Governor alone, under our Constitution, to grant pardons cannot be questioned, yet it is equally beyond question that the Legislature has the sole power to define offenses and fix the punishment to be inflicted on the offender. Our Penal Code provides, article 3: “In order that the system of penal law in force in this state may be complete within itself, and that no system of foreign laws, written or unwritten, may be appealed to, it is declared that no person shall be punished for any act or omission, unless the same is made a penal offense, and a penalty is affixed thereto 6y the written law of this state." The power to determine that penalty is not conferred on the executive nor the judiciary, but is confided solely to the legislative branch of the government, and we, nor the Governor, have authority nor power to prescribe to the legislative department what acts of omission or commission shall be made penal offenses, nor what punishment shall be assessed for a violation of such penal laws. This power is confided solely to the legislative branch of the government, and in this act the Législa-ture has not sought to excuse from punishment any one after conviction and penalty assessed. As the Code has provided in defining principals that all persons are guilty who act together in the commission of an offense, and even though one should commit an offense, if another is present and encourages him in the act he is likewise guilty, which general provision is applied to and read into each and every article of the Code defining offenses, so should this general provision in regard to punishment be read into and applied to each article of the Code prescribing the punishment for such offense. Section 1 of article 2 of the Constitution provides that the powers of the government shall be divided into three distinct departments. Those which are legislative to one; those which are executive to another; and those which are judicial to another, and no person being of one of these departments shall exercise the power properly attached to either of the others. And section 1 of article 3 provides that the legislative power shall be vested in a Senate and House of Representatives, which together shall be styled “the Legislature,” and in article 13 certain powers are specifically conferred on the Legislature, which is to enact laws, and the Governor nor the judiciary have no more authority to invade the power conferred on the Legislature than has the Legislature to invad(e and usurp the power of the Governor to grant pardons. The passage of this law, misnamed a “suspension of sentence,” is a legislative act, passed within the scope of the power which they and they alone possess, to fix by law the punishment of any and all penal offenses. It does not authorize a jury nor the courts to suspend any law of this state, but the Legislature hy law has provided that in given contingencies no punishment shall be suffered for the first violation of certain provisions of the Penal Code.

It is also true that the Constitution provides that no law shall be revised or amended by reference to its title, but in amending laws the section amended shall be re-enacted and published at length. But no one doubts that by a general law applicable to all crimes, or certain enumerated crimes, the Legislature could provide that no punishment should be assessed if the jury should in their verdict find that it was the first offense committed by the person on trial; and if they could so provide by general law, the Constitution does not inhibit them from passing a general law, which provides that in the trial for certain offenses defined by the Code the question shall be submitted to the jury whether or not the person on trial has ever before committed any offense, and as they could have provided that in the-event they so found no punishment should be undergone, so they can also provide that in the event the jury so finds and recommends that no punishment be suffered, no punishment shall be assessed, unless within the period named he shall again be found guilty of violating the laws of the state, in which event he shall not only be punished for the second violation but shall also be punished for the first violation the period of time fixed by the jury. The law may be awkwardly expressed, but the intent and purpose of the law and the legislative will is made plain by its terms, and by a proper construction thereof it will be found to be in conflict with no provision of the .-Constitution; and we hold the Legislature had the power and authority to enact it, that it is not unconstitutional, that it relates solely to the penalty to be suffered, and the Legislature has the power and authority to fix the punishment and penalty for every character of offense.

The difference in this law and the one passed by the Thirty-Second Legislature, and which was held unconstitutional, is manifest. In the former act it was provided that after the guilt of the person on trial was determined and his punishment assessed in ac-’ cordance with the written law of the state, the trial judge should hold another trial, hear evidence and determine whether or not he would relieve from punishment fixed by the jury and judgment of conviction. In this latter act, the law is so written that it becomes a part of each article of the Code, prescribing the punishment, and in accordance with the provisions of our Constitution and Bill of Rights that “the right of trial by jury shall remain inviolate” in the law it is provided that the jury in passing on the guilt or innocence of the accused shall also hear evidence as to the life he has formerly led, and determine whether or not he is such a person as should be confined within the walls of the penitentiary. If they find from this evidence that the best interest of the citizen on trial and of the state will be subserved by compelling him to undergo no punishment, the Legislature has so framed the law as to give them the right to so provide in their verdict, coincident with and as a part of their verdict, and the district judge nor this court cannot gainsay their verdict.

Much could be written as to why this law violates no provision of the Constitution, invades no power conferred on any other branch of the government, but we deem it unnecessary. The Legislature had and has hopes of reforming first offenders and thus aiding them in becoming good and useful citizens, and we may be excused for saying that we are glad that the law is so framed this time that we can sustain it. If in but few cases the object -intended is accomplished, yet if but one wayward man or boy is restrained and reformed, the best interest of the state will be subserved.

Such being our judgment, in our opinion this case should be remanded to the district court of Harris county, with instructions to vacate and annul the sentence theretofore announced by the court, and appellant be released upon his entering into recognizance as provided by law. -We cannot set aside the verdict of the jury; appellant does not seek that relief, but merely holds that the sentence pronounced at the time it was rendered, being unauthorized by law, is absolutely void, and under such circumstances appellant is entitled to be released upon recognizance. The court could not accept the verdict of the jury and permit it to stand, and yet refuse to abide by it. However, he would have authority to set aside the entire verdict if in his judgment it should be done, and again try the defendant on the charge.


text:
    ROBERTS v. STATE.
    (Court of Criminal Appeals of Texas.
    June 18, 1913.)
    Criminal Law (§ 1001) — Punishment—Suspended Sentence.
    Where the jury in response to the court’s instruction returned a verdict finding accused guilty, as charged, of engaging in the business oí unlawfully selling intoxicating liquors, assessing his punishment at two years, and further found that he had never before been convicted, accused is not entitled to have his sentence suspended under the Suspended Sentence Law, Act Feb. 11, 1913, providing that if a person on trial request in writing that his general reputation be inquired into, and the person shall show and the jury shall find that he has never before been convicted of a felony, and the jury shall recommend that sentence be suspended, the court shall suspend the sentence, because the court is not given a discretion as to the suspension of sentences; that power being vested in the jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2554-2559; Dec. Dig. § 1001.]
    Appeal from District Court, Collin County; G. R. Smith, Special Judge.
    Kid Roberts was convicted of engaging in the business of selling intoxicating liquors in prohibition territory, and he appeals.
    Affirmed.
    See, also, 144 S. W. 940.
    C. E. Dane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, J.

Appellant was properly indicted on April 1, 1911, charging him with unlawfully engaging in and pursuing the occupation and business of selling intoxicating liquors in Collin county in violation of the prohibition law then in force in said county. He was convicted and his penalty fixed at two years in the penitentiary. There is no statement of facts with the record. It seems it was deemed unnecessary in view of the sole question raised and to be decided.

The case was tried on March 4, 1918. Prior to the trial appellant properly filed his sworn plea under the act of the Thirty-third Legislature, approved February 11, 1913, p. 8, to have his sentence suspended in case he was convicted. Under this act of the Legislature five things are required before the district judge can suspend the sentence: First, appellant must file his sworn plea before the trial begins, seeking the suspension of his sentence in case of conviction; second, that the conviction shall not be for murder, perjury, burglary of a private residence, robbery, arson, incest, bigamy, or abortion; third, that the term of conviction found by the jury shall not exceed five years’ confinement in the penitentiary; fourth, the verdict of the jury shall find that “defendant has never before been convicted of a felony in this state, or any other state”; fifth, the jury shall recommend in their verdict that sentence shall be suspended. If either of these requisites are lacking the court cannot suspend the sentence, but must sentence the party the same as the law heretofore has been and as if said act suspending the sentence had not been passed. On this question the court charged the jury in this case as follows:

“(7) The defendant in this case having filed his sworn application for a suspension of sentence in the event he is convicted, you are charged that the following is the law with reference thereto: The laws of the state of Texas provide that if there is a conviction of a felony of the character of which the defendant stands charged that the court may suspend sentence when the punishment assessed by the jury shall not exceed five years’ confinement in the penitentiary and when the proof shows and the jury finds by their verdict that defendant has never before been convicted of a felony in this state or in any other state. The law further provides that the jury may in their discretion from all of the facts and circumstances in evidence recommend that sentence be suspended, when that is done the law provides that it is obligatory upon the court to suspend sentence during good behavior.
“(8) In the event you find the defendant guilty under this charge, then you will proceed to determine from the evidence adduced whether or not the defendant has ever before been convicted of a felony in this state or in any other state, and if you find from the evidence that the defendant has never before been convicted of a felony in this state or in any other state, then that fact should be stated in your verdict; in which event you may in your discretion from all of the facts and circumstances in evidence, recommend the suspension of sentence.
“(9) In the event you find the defendant guilty and further find that he has never before been convicted of a felony in this state or in any other-state the form of your verdict may be: ‘We, the jury, find the defendant guilty as charged in the indictment and assess his punishment at-years in the penitentiary (filling in the blank), and we further find that the defendant has never before been convicted of a felony in this state or in any other state (and you may in your discretion recommend that his sentence be suspended).’ ”

The jury found this verdict: “We, the jury, find the defendant guilty as charged in the indictment and assess his punishment at two years in the penitentiary, and we also find from the evidence the defendant has never before been convicted of a felony in this state or in any other state. A. M. Conner, Foreman.” From this it will be seen that the jury did not, in their verdict, recommend that the sentence should be suspended. This was a prerequisite, as stated above, and essential to be found before the court could suspend sentence. It was not necessary for the jury to find that they did not recommend the suspension of sentence, but they must affirmatively recommend in their verdict that the sentence be suspended. Clearly, the discretion of whether or not the jury would recommend the suspension of sentence or not is, under said law, left to them. It was not for the court, and the court could not suspend without the verdict recommending it. This being so, the sentence of conviction is in accordance with the law, and the court did not err in not suspending the sentence under said act of the Legislature. See Monroe v. State, 157 S. W. 154, from Williamson county, decided May 28, 1913, and Baker v. State, 158 S. W. 998, from Harris county, decided June 11, 1913.

The judgment will be affirmed.


author: HARPER, J.

text:
    NORTHCUTT v. STATE.
    (Court of Criminal Appeals of Texas.
    June 4, 1913.
    Rehearing Denied June 27, 1913.)
    1. Criminal Law (§ 1090) — Appeal—Record-—Contents—Bill of Exceptions.
    Denial of an application for a continuance cannot be reviewed, where no bill of exceptions to the court’s action is in the record.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dee. Dig. & 1090.] •
    2. Witnesses (§ 395) — Impeachment—Contradictory Statements — Supporting Declarations.
    Where in a prosecution for rape, accused sought to impeach prosecutrix by proving contradictory statements, the state was entitled to-support her testimony by proving that she had told witness, a physician, prior to the trial, in accordance with her testimony that accused was the cause of her condition.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1260; Dec. Dig. § 395.]

      S. "Witnesses (§ 387) — Cross-Examination— Scope.
    Where accused sought to prove prosecu-trix’s age by his wife, and she testified that pros-ecutrix, who was her sister, was more than 15 years of age at the time of the alleged offense, the state was entitled to prove by her on cross-examination that she had given prosecutrix’s name to the census trustee of the public school, and had sworn, three days before accused was indicted, that prosecutrix was only 14 years of age, notwithstanding that accused had asked nothing concerning prosecutrix’s being enrolled in the public schools.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1228-1232; Dec. Dig. § 387.]
    4. Criminal Law (§ 770) — Instructions— Denial oe Ouilt.
    An instruction that in all criminal cases accused is presumed to be innocent until his guilt is established by competent evidence beyond a reasonable doubt, and that the burden of proving guilt is on the prosecution throughout the trial, and does not shift to the accused, and in case the jury has a reasonable doubt of accused’s guilt they shall acquit, sufficiently presented accused’s denial of guilt.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1806; Dec. Dig. § 770.]
    5. Criminal Law (§ 1106) — Contempt (§ 10) —Appeal—Transcripts—Failure to File —Duty op Clerk — Contempt.
    Code Cr. Proc. 1911, art. 929, makes it the duty of the clerk of a court from which an appeal is taken to prepare, as soon as practicable, a transcript in every case in which an appeal has been taken, which transcript shall contain all the proceedings had in the case, and shall conform to the rule governing transcripts in civil cases. Article 930 provides that the clerk shall prepare transcripts in felony cases that have been appealed, in preference to cases of misdemeanor, and shall prepare transcripts in all criminal cases appealed in preference to civil cases. Article 932 declares that, immediately after adjournment of the court at which appeals in criminal actions may have been taken, the clerk shall make out a certificate under his seal of office, exhibiting a list of all such cases in which ah appeal has been taken, and transmit the same to the clerk of the Court of Criminal Appeals. Held, that since all transcripts in civil cases must be filed within 90 days after the date of perfecting the appeal, it is the duty of the clerk to prepare and transmit transcripts in criminal cases in which appeals have been taken within not to exceed 90 days from the date of perfecting the appeal, which duty will be enforced by contempt proceedings.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2890-2892; Dec. Dig. § 1106 ;* Contempt, Cent. Dig. §§ 19-22; Dec. Dig. §10.]
    6. Contempt (§ 10) — Duties of Attorney-Withdrawal op Records — Retention — Contempt.
    Where the clerk of a court from which an appeal in a criminal case has been taken is prevented, by the negligence or willful misconduct of accused’s attorney" in withdrawing or withholding necessary records, from preparing and transmitting the transcript to the Court of Criminal Appeals within 90 days after the taking of the appeal, the attorney will be held guilty of contempt of the Court of Criminal Appeals, and punished accordingly.
    [Ed. Note. — For other cases, see Contempt, Cent. Dig. §§ 19-22; Dec. Dig. § 10.]
    Appeal from District Court, Rains County; R. L. Porter, Judge.
    John Northcutt was convicted of rape, and he appeals.
    Affirmed.
    , Dinsmore, McMahan & Dinsmore, of Green-ville, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

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

   HARPER, J.

Appellant was convicted of rape on his sister-in-law, a girl alleged to be 'under 15 years of age, and his punishment assessed at 14 years in the penitentiary.

The first ground in the motion for new trial complains of the action of the court in overruling his application for a continuance. As no bill of exceptions was reserved to the action of the court in so doing, at least none is copied in the record before us, the matter is not presented in a way we would be authorized to review the action of the court in so doing. Bowman v. State, 40 Tex. 8; Nelson v. State, 1 Tex. App. 41; Hollis v. State, 9 Tex. App. 643; Gaston v. State, 11 Tex. App. 143; Prator v. State, 15 Tex. App. 363; Lerman v. State, 40 S. W. 286; Cone v. State, 13 Tex. App. 485; Hays v. State, 20 S. W. 548; Green v. State, 49 Tex. Cr. R. 647, 98 S. W. 1059; Griffith v. State, 48 Tex. Cr. R. 575, 89 S. W. 832; Lucas v. State, 19 Tex. App. 87; Scott v. State, 23 Tex. App. 565, 5 S. W. 142; Williams v. State, 24 Tex. App. 34, 5 S. W. 658; Spear v. State, 16 Tex. App. 113; Wesley v. State, 60 Tex. Cr. R. 299, 131 S. W. 1107.

In bill of exceptions No. 1 it is complained that Dr. E. J. Owens was permitted to testify that the prosecuting witness, Bessie Pettitte, at the time he was called, had told him that appellant was the cause of her condition. As appellant had sought to impeach her by proving contradictory statements, then the state could support the witness by proving that she had made the statement as to that testified to on the trial. Goode v. State, 32 Tex. Cr. R. 508, 24 S. W. 102; Sentell v. State, 34 Tex. Cr. R. 260, 30 S. W. 226; Simpson v. State, 46 Tex. Cr. R. 552, 81 S. W. 320; Rice v. State, 50 Tex. Cr. R. 650, 100 S. W. 771; Pitts v. State, 60 Tex. Cr. R. 524, 132 S. W. 801, and numerous cases cited in section 874, Branch’s Criminal Law.

The only other bill of exceptions complains of the action of the court in permitting the district attorney, on cross-examination of appellant’s wife, to prove by her that she •had given the name of her sister (the prose-cutrix) to the census trustee of the public school, and had sworn, three days before appellant was indicted, that her sister was only 14 years of age; the contention being that appellant had asked nothing about her being enrolled in the public schools. Appellant introduced his wife as a witness, and she testified that the prosecutrix (her sister) was more than 15 years of age at the time of the commission of the alleged offense. As defendant had sought to prove the age of the prosecutrix by his wife, then she could be cross-examined on that issue, and the court did not err in the premises. Dobbs v. State, 54 Tex. Cr. R. 554, 113 S. W. 923; Exon v. State, 33 Tex. Cr. R. 468, 26 S. W. 1088; Creamer v. State, 34 Tex. 173; Buchanan v. State, 41 Tex. Cr. R. 127, 52 S. W. 769; Merritt v. State, 40 Tex. Cr. R. 359, 50 S. W. 384; sections 852, 853, Branch’s Crim. Law.

These are all the bills of exception in the record, and all the special charges requested by defendant were given except one, which was fully covered by the court in his main charge. A denial of guilt presents no affirmative issue. The court instructed the jury as to the presumption of innocence, in the following language: “In all criminal cases the defendant is presumed to be innocent until his guilt is established by legal and competent evidence beyond a reasonable doubt, and the burden of proving guilt is upon the prosecution, and such burden never shifts from the state to the defendant, but rests on the prosecution throughout the trial; and, in case you have a reasonable doubt as to defendant’s guilt, you will acquit him.” This sufficiently presented the denial of guilt.

As to the contention made on the trial that the prosecutrix was 15 years of age, the court, at the request of appellant, instructed the jury: “If you believe from the evidence, beyond a reasonable doubt, that the defendant, John Northcutt, had sexual intercourse with Bessie Pettitte, as charged in the indictment, yet, if you believe from the evidence that at the time of such sexual intercourse, if any, Bessie Pettitte was 15 years old or if you ihave a reasonable doubt as to whether she was, at the time of such sexual intercourse, if any, less than 15 years old, or if you have a reasonable doubt as to the defendant’s guilt, the defendant is entitled to an acquittal, and you will return a verdict of not guilty.” This affirmatively presented the only defensive issue presented by the testimony offered in behalf of appellant.

This case was tried in the district court of Rains county in December, 1911, and the record was not filed in this court until April •28, 1913, and after this court had taken affirmative steps to require it to be filed. We were first made aware in April of this year that this case had been tried in December, 1911, when we cited the district clerk and ex-district clerk of Rains county to show cause why they had not complied with the law, and filed a transcript in this court within the time provided by law. A transcript was then filed, and they filed an answer, and testimony was heard last Wednesday. From this answer and the testimony it appears that when the motion for new trial was overruled, appellant’s counsel, by leave of the clerk, took the court papers to prepare his bills of exception and the record on appeal; that the trial judge extended the time to file bills of exception and statement of facts until March 1, 1912; that on February 25th appellant filed his bills of exception and statement of facts, and after they were filed appellant’s counsel requested all the papers in the case that he might make an order for the transcript, and was permitted to take them. These papers were not returned to the clerk until in November, 1912, although repeated requests and demands had been made for them by the clerk. Appellant’s counsel admits these demands were made, but states the papers had been mislaid, and further states he did not find them until in November, about 11 months after the trial. When he did return them, he requested the clerk, as soon as the transcript was completed, to permit him to take the papers to prepare a brief; this the clerk permitted, and again it is stated that the clerk repeatedly demanded the return of the transcript and the papers, but was unable to secure them until in April of this year, when they were forwarded to this court. Appellant’s counsel states he had been very busy. Appellant’s counsel is not before the court, as he was not cited to appear and show cause why the transcript had not been filed; it being the duty of the clerk to file the papers in this court.

The only question presented is whether or not the clerk shall be punished for not filing the transcript in this court as provided by law. As the evidence and admissions of appellant’s counsel show that, while the clerk, perhaps, should not have allowed the papers out of his possession, after doing so he used every effort to regain possession of them, he going to the extent of applying to the court and district attorney for assistance in the premises, and, further, that appellant’s counsel prevented the earlier filing of the transcript, first, by misplacing the papers, and, secondly, by mistake, as he alleges, we do not feel that the clerks ought to be punished, but we will take occasion to state certain rules that will govern in cases hereafter tried in the district and county courts.

Article 932 of the Code of Criminal Procedure reads: “The clerk shall, immediately after the adjournment of the court at which appeals in criminal actions may have been taken, make out a certificate under his seal of office, exhibiting a list of all such causes which have been decided, and in which the defendant has appealed. This certificate shall show the style of the cause upon the docket, the offense of which the defendant stands accused, the- day on which judgment was rendered, and the day on which the appeal was taken; which certified list he shall transmit, postpaid, to the clerk of the Court of Criminal Appeals.” A large number of district and county clerks have been ignoring this provision of our statute, and by so doing prevent this court from having any knowledge of whether transcripts are being prepared and forwarded to this court in accordance with the provisions of the Code. Hereafter a strict compliance with the above provisions of the Code will be required, and clerks who fail to comply therewith and forward this data will be held to be in contempt of this court, and they will be punished accordingly.

Again, in regard to the transcripts, article 929 provides: “It is the duty of the clerk of a court from which an appeal is taken to prepare, as soon as practicable, a transcript in every case in which an appeal has been taken, which transcript shall contain all the proceedings had in the case, and shall conform to the rules governing transcripts in civil cases.”

Article 930 reads: “The clerk shall prepare transcripts in felony cases that have been appealed in preference to cases of misdemeanor, and shall prepare transcripts in all criminal cases appealed in preference to civil cases.”

These provisions of the Code need no construction; their mandate is plain. In civil cases the transcript must be filed within 90 days from the time of perfecting the appeal, and if this is not done, the appeal will be dismissed. The Code, in stating that trans-scripts in criminal cases shall he prepared m preference to civil cases, contemplates that the transcript must be filed in this court within less than 90 days from the date of perfecting the appeal, and this is made emphatic by the language used in article 934 of the Code, which provides: “When it appears, by the certificate provided for in the preceding article (article 932), that an appeal has been taken in any case in which a transcript has not been received by the clerk of the Court of Criminal Appeals within the time provided by law for filing transcripts in civil actions (ninety days), the clerk of the Court of Criminal Appeals shall immediately notify the clerk of the proper court by mail that such transcript has not been received (article 935). The clerk receiving notification * * * shall, without delay, prepare and forward another transcript of the case, as in the first instance.”

Clerks of the various courts are notified that in the event a transcript, in the first instance, is not received by the clerk of this court within not exceeding 90 days from the date of perfecting the appeal in cases hereafter tried, at the time they are notified same has not been received, and they are required to make out another transcript, they will also be cited to appear before this court and show cause why they have not complied with these provisions of the Code, and if good cause is not shown, they will be held to be in contempt of this court and punished accordingly.

And defendants and attorneys for them are cautioned, also, that if the clerks shall show they are prevented from a compliance with the above law by the negligence of the defendants’ attorney, or by his or their willful misconduct, the attorney will be held to be in contempt of this court, and punished for such contempt. A system of negligence has grown up in the practice of criminal law that is constantly growing worse, and can no longer be tolerated. If an attorney can perfect his record and prepare his brief in a civil case within 90 days, there is no reason why he cannot do so in a criminal case; and, as the law provides he shall do so, we will in future enforce that law. It has grown to be the custom in many cases to delay filing transcripts in criminal cases from one to two years from the date of perfecting the appeal, and the courts have been censured for this delay, and perhaps justly so, for they have permitted the delay by not enforcing the law as written. It is true that generally the trial courts have been and are prompt in the trial of cases, and that this court has, in the main, been prompt in disposing of the case after the transcript has been filed, but unnecessary delay has been occasioned in some instances by the indulgence of the trial courts, and in some instances with this court’s cognizance, but it has been occasioned mainly by the clerks of the courts wholly ignoring the plain provisions of the Code of Criminal Procedure. If each and every official will but do his duty in the premises, the occasion for complaint as to delay in criminal cases can be remedied without writing another line of law into the Codes, and we are emphasizing this fact, and calling the officers’ attention to the Code, that none may plead ignorance, for the law will hereafter be enforced.

We have passed on the merits of this case in this instance, although the attorney admits that the papers were misplaced in his office, and when he knew that fact he made no effort to substitute them, as he should have done within the time provided by law, and which he would have been compelled to do if a civil ease, if he desired to have his appeal considered, yet we do not feel inclined to visit the negligence of the attorney upon the client, but we will hold the attorneys to strict accountability for their negligence or willful misconduct in future.

The judgment is affirmed.


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

text:
    DENNIS v. STATE.
    (Court of Criminal Appeals of Texas.
    June 18, 1913.
    Rehearing Denied June 27, 1913.)
    1. Criminal Law (§ 1093) — Continuance.
    A bill of exceptions did not show any error which stated that 30 or 40 minutes after accused’s announcement as ready for trial he moved to postpone, claiming that he had not been served with a true copy of the indictment, and that the motion was overruled because the copy served was sufficient to apprise accused of the nature of the accusation, and that accused accepted said copy and summoned his witnesses and appeared and asked for a postponement because of absent witnesses but afterwards stated that his witnesses were all present and he was ready, whereupon the motion to postpone was overruled as coming too late.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2828-2833, 2919, 2920; Dec. Dig. § 1093.]
    2. Burglary (§ 46) — Instructions — Burglary in Nighttime.
    Instructions expressly requiring the jury to find that accused entered the house at night in order to convict, and charging in addition that if accused did not enter the house at night, or with the owner’s consent, or not by force, or not for the purpose of committing theft, the jury should acquit, sufficiently charged that the jury must find beyond a reasonable' doubt that accused entered the house at night.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 111-120; Dec. Dig. § 46.]
    3. Names (§ 16) — Idem Sonans.
    The fact that the indictment charged that the house burglarized belonged to Ike “Geton,” while the evidence showed that it belonged to Ike “Jetton,” was not a material variance; the names being idem sonans.
    [Ed. Note. — For other cases, see Names, Cent. Dig. §§ 4, 12-14; Dec. Dig. § 16.]
    4. Burglary (§ 41) — Prosecution — Sueei-ciency of Evidence.
    Evidence held to require a conviction for burglary.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 9A-103, 109; Dec. Dig. § 41.]
    5. Criminal Law (§ 1173) — Appeai>-Harmless Error.
    Code Cr. Proe. 1911, art. 735, provides that in all criminal cases the judge shall deliver a written charge distinctly setting forth the law applicable to the case and shall so charge in felony cases whether requested or not, and article 743 provides that, whenever it appears from the record in a criminal case on appeal that any of the requirements of the eight preceding articles are disregarded, the judgment will not be reversed unless the error was calculated to injure accused’s rights. Seld¡ that error in not charging on circumstantial evidence was not reversible where under the evidence an honest jury could not have acquitted.
    [Ed. Note. — For other, cases, see Criminal Law, Cent. Dig. §§ 3164-3168; Dec. Dig. § 1173.]
    6. Burglary (§ 25) — Proof — Consent of Owner — Entry.
    Where a burglarious entry is alleged to have been by force and breaking, the want of the owner’s consent to the entry need not be specifically alleged.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 48-50; Dec. Dig. § 25.]
    7. Burglary (§ 9) — “Breaking.”
    By “breaking” into a house is meant that the entry must be made with actual force, but the slightest force is sufficient to constitute a breaking, as the lifting of a doorlatch, etc.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 6-12; Dec. Dig. § 9.

    For other definitions, see Words and Phrases, vol. 1, pp. 862-866.]
    8. Burglary (§ 4) — “House.”
    A “house,” as defined by the burglary statute, is any building or structure erected for private use of whatever material, and a harness house, which was a complete room with the door entered as the only entrance and which was made a part of a barn, was a “house” within the statute.
    [Ed. Note. — For other 'cases, see Burglary, Cent. Dig. §§ 14-18; Dec. Dig. § 4.

    For other definitions, see Words and Phrases, vol. 4, pp. 3351-3357.]
    Davidson, P. J., dissenting.
    Appeal from District Court, Montague County; C. F. Spencer, Judge.
    Newt Dennis was convicted of burglary in the nighttime, and appeals.
    Affirmed.
    Homer B. Latham, of Bowie, for appellant. C. E. Lane, Asst Atty. Gen., for the State.

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

   PRENDERGAST, J.

Appellant was convicted for nighttime burglary and his penalty fixed at two years’ confinement in the penitentiary, the lowest prescribed by law.

The indictment in this case is in one count only. It alleges, .in the terms of the statute, burglary at night with intent to steal. Then charges the actual theft of a single buggy harness worth $10. All the elements necessary to charge theft are specifically charged in this part of the indictment. It follows the indictment in the case of Williams v. State, 24 Tex. App. 69, 5 S. W. 838, and Coates v. State, 31 Tex. Cr. R. 261, 20 S. W. 585, and is a good indictment for burglary.

Appellant has a bill of exceptions to the overruling of his motion to postpone the trial for two days, claiming that he had not been served with a true copy of the indictment. Neither the bill nor motion in any way show wherein the copy that was served on him was not a true copy. The court, in approving the bill, qualified it by stating; “This case was called on call of the docket on the day of the trial before noon, whereupon the state announced ready and the defendant asked that the case be set over until the afternoon, or that it be continued, as his witnesses were not present, whereupon the case was set over until 1 o’clock in the afternoon, and counsel for the defense came to me as I was entering the courthouse door getting ready to call court at 1 o’clock and stated to me that he was now ready; that his witnesses were all present. Some 30 or 40 minutes after that announcement on his part he presented me with the motion shown by this bill, which motion was overruled for the reason and on the ground that the copy served on the defendant was sufficient to apprise him of the nature of the accusation against him; that he accepted said copy, upon it summoned his witnesses, appeared in court and asked that the case be set over on account of the absence of his witnesses, and thereafter, as aforesaid, told the court that his witnesses were all present and that he was ready for trial, and this motion came too late in the opinion of this court.” The court’s action was correct and no error is shown in his overruling appellant’s motion.

Appellant requested the court to give his special charge to the effect that the defendant is charged with burglary at nighttime, and unless you find and believe beyond a reasonable doubt that the defendant did enter the barn of Ike Jetton at nighttime, if you do find that he entered same, you will find him not guilty.

The court in submitting the ease to the jury for a finding expressly required them to find that he entered the house at night before they could find him guilty. Then he charged the jury in a separate and distinct charge that if they did not find that he entered the house at night, or even if he entered it and he did do so with the consent of Jetton, or if he entered it but did not do so by force, or if he did not enter it for the specific purpose of committing the offense of theft, to find him not guilty. This clearly and fully covered the point requested in said special charge, and the court committed no error under the circumstances in refusing his said special charge.

The indictment charged that the house entered was owned by Ike “Geton.” In the statement of facts his name is spelled, in some places, “Getton,” and in the record, in other places, it is spelled “Jetton.” There is no question whatever in the record about the identity of the owner of the house burglarized and the harness stolen therefrom. Appellant requested this special charge: “The defendant stands charged by indictment with the offense of burglary of a house owned and in the possession of Ike ‘Jetón.’ Xou are instructed that, if you find from the evidence that the proof shows a burglary of a house owned and in the possession of Ike ‘Jetton,’ you will find the defendant not guilty and so say by your verdict.” In appellant’s bill to the refusal of the court to give his said special charge, the court qualified it by stating “with the explanation that the two names are pronounced alike, being G-Tun, and are idem sonans.” There was no error in the court refusing appellant’s special charge. Feeny v. State, 62 Tex. Cr. R. 585, 138 S. W. 135; Gentry v. State, 62 Tex. Cr. R. 497, 137 S. W. 696.

In his motion for a new trial appellant claims, for the first time, that the court erred in not charging on circumstantial evidence. In the qualification to his bill of exception on this subject, the court explains that no exception was taken at the time of the trial to the court’s charge in failing to charge on circumstantial evidence and that no charge on that subject was requested. It would have been proper in this case for the court to have charged on circumstantial evidence. Article 735, C. C. P., says: “After the argument of any criminal cause has been concluded, the judge shall- deliver to the jury a written charge, in which he shall distinctly set forth the law applicable to the case. * * ⅜ This charge shall be given in all cases of felony, whether asked or not.” Under this article this court has always held that where the state’s case is made by circumstantial evidence it is necessary to give a correct charge on circumstantial evidence. But long subsequent to this article, by the amended act of 1897, p. 17, now article 743, O. O. P., it was expressly enacted that, whenever it appears from the record in any criminal action upon appeal that any of the requirements of the eight preceding articles, which includes said article 735, have been disregarded, “the judgment shall not be reversed, unless the error appearing from the record was calculated to injure the rights of the defendant, which error shall be excepted to at the time of the trial, or on a motion for new trial.” Since the enactment of this article it has always been held that this amendment was a remedial statute designed to prevent reversals for mere omissions in the charge of the court, and that when such omission has occurred “the judgment shall not be reversed, unless the error was calculated to injure the rights of the defendant.”

In this case the evidence is undisputed.. It shows, without contradiction, that on the' evening of December 4, 1912, at about 4 o’clock, appellant and said Jetton traded horses at the home of said Jetton, and that in the trade appellant included this set of harness; that the trade was made in Jetton’s lot; that appellant then and there delivered to Jetton said harness, and that Jetton hung it up in his gear house at his barn and closed and fastened the door to his harness house. Appellant then left, claiming that he was going to the town of Nocona. Jetton did not go into his harness house until the next morning about 9 o’clock when one of his neighbors came over to see the horse that he had traded for from appellant, the neighbor having heard it from the school children who passed Jetton’s house after the trade was made; that Jetton then took this neighbor to his harness house to show him the set of harness that he had got in this horse trade; that he found his harness house door closed, but upon opening it the set of harness was gone. It was taken some time between 4 o’clock on the evening of December 4th and the next morning at 9 o’clock. The horse and buggy in which appellant left Jetton’s house was tracked from there some distance, not towards Nocona, but some other point, and appellant, after getting some distance, stopped his horse and buggy, got out, and he was tracked back down the road some distance, then into Jetton’s field, and his tracks showed that he was going towards appellant’s gear house. Jetton’s horses had been in his lot and his tracks could not be seen in the lot and at the gear house, because the horses, in walking about over the lot, had obliterated appellant’s tracks, if he made any. The next morning early appellant was found asleep in an outhouse near another witness’ home. This witness woke him up and then saw that he had this new set of harness. The next morning appellant went to the town of Bowie in Montague county. As soon as Jetton found that his harness had been stolen, he had his neighbor to phone to the officer at Bowie. The officer at once located and arrested appellant, and he then had this set of harness. Jetton then went to Bowie, saw the harness, clearly identified it, and recovered it. No explanation whatever was then made by appellant of his possession of said harness. There was no intimation in the evidence that any other person than appellant stole said harness, and no one was shown to- be in a position to have done so.

Appellant’s only defense was insanity. He offered the testimony of several witnesses whose testimony was very unsatisfactory and insufficient to establish his insanity, but may have had a tendency to do so. The court correctly submitted in his charge this question to the jury and told them that if he was insane to acquit him. No complaint was made to the charge of the court on this subject or to the finding of the jury on this issue against him.

Under the proof in this ease no honest jury would have rendered any other verdict than that of guilty.

Under the circumstances and proof in this case, and under said article 743, O. O. P., the error of the court in not charging on circumstantial evidence was not calculated to injure the rights of the defendant and did not injure them to the extent as to require the reversal of this judgment on that ground. It is needless to cite the many decisions of this court applicable to this question and conclusive against appellant.

Appellant attacks the sufficiency of the evidence to sustain the conviction on these grounds: First, that it was insufficient to show a nighttime burglary. We think it was sufficient Second, that it failed to show that the entry to Jetton’s harness house was without his consent. The entry having been alleged to be by force and by breaking, it was unnecessary to either allege or prove in specific terms the want of the owner’s consent. Sullivan v. State, 13 Tex. App. 462; Mace v. State, 9 Tex. App. 110; Summers v. State, 9 Tex. App. 396; Reed v. State, 14 Tex. App. 662; Black v. State, 18 Tex. App. 124; State v. Williams, 41 Tex. 98; Taylor v. State, 23 Tex. App. 639, 5 S. W. 141; Buntain v. State, 15 Tex. App. 485; Uangford v. State, 17 Tex. App. 445; Smith v. State, 22 Tex. App. 350, 3 S. W. 238; Buchanan v. State, 24 Tex. App. 195, 5 S. W. 847. Third, that the evidence failed to show that force was required to enter the house. Jetton testified, which was undisputed, that when he placed said harness in his harness house he closed and fastened the doors, and that there was no other way to get the harness out than through this door. The statute says that entry includes every entry but one made by the free consent of the occupant; that it is not necessary there should be any actual breaking to constitute the offense of burglary when the entry is at night. C. C. P. art. 1306.

By breaking is meant that the entry must be made with actual force. The slightest force, however, is sufficient to constitute a breaking; it may be by lifting the latch of a door that is shut and other such like entries. C. C. P. art. 1308. And his only other attack on the sufficiency of the evidence is he claims that the evidence fails to show that the place from which the harness was taken was a house or only a room attached to a house.

A house, as defined by our statute, is. any building or structure erected for private use of any individual of whatever material it may be constructed. The evidence in this ease, without contradiction, shows that this harness house was a complete room with this, door as the only entrance thereto, which was added onto and made a part of Jetton’s barn. This clearly, under all of the decisions, is a house within the meaning of our burglary statute. Jame v. State, 63 Tex. Cr. R. 559, 140 S. W. 1086.

The judgment will be affirmed.

DAVIDSON, P. J.

(dissenting). The majority opinion concedes this to be a case purely dependent upon circumstantial evidence, and that a charge on that subject should have been given. But it is asserted that the error is not reversible because the evidence is so strong that the jury were bound to convict; therefore error is protected by terms of article 743, O. O. P. I do not believe that because the evidence is strong the court is-justified in not charging the law of the case. If this be- true, then the court need not charge any phase of the law at all if the facts show strongly or even conclusively the guilt of the accused. This cannot be correct under our statute which requires the court to give in writing a charge on the law applicable to the facts whether requested or not. Article 735, C. O. P. Appellant reserved his exception in motion for new trial. This is sufficient by the wording of the statute. O. O. P. art. 743. It has been always held to be fundamental error not to charge on circumstantial evidence whether excepted to or not. White’s. Annotated O. O. P. § 813, where a great number of cases are cited; also Branch’s Crim. Law, §§ 202, 203. If this universal rule has been changed, it is by reason of the fact that article (C. C. P.) 743 requires exception to be taken during the trial or on motion for new trial. Exception was duly reserved on motion for new trial by appellant. But my Brethren, conceding this to be the law and the statute, say it is not error because they find the facts to be sufficient to sustain the verdict, and that the jury ought to have found the same verdict had the law been given. I do not know what the verdict would have been under a charge giving the law. I do not care to write further. The affirmance is in the face of the the law. The judgment ought to be reversed.