text:
    WESTERN UNION TELEGRAPH CO. v. WILSON.
    (No. 2519.)
    (Supreme Court of Texas.
    April 25, 1917.)
    1. TELEGRAPHS AND TELEPHONES <&wkey;66(4)— Eailube, to Deliver Message — Evidence— Supeiciency.
    In a suit for failure to make prompt delivery of telegrams sent the plaintiff, announcing the death of his mother, whereby he was prevented from attending her funeral, evidence held, to warrant a jury finding that by ordinary diligence on the part of the defendant delivery of the telegrams could have been made to plaintiff on the day received at the city of his residence, which would have enabled him to reach the place of funeral in time.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 63.]
    2. Telegraphs and Telephones <&wkey;38(5)— Failure to Deliver Message — De.ee,nse.
    The fact that the plaintiff lived outside the free delivery limits established by defendant constitutes no defense if the telegraph company did not inform the sender of that fact or make demand for extra charge for delivery, since the burden of ascertaining whether the addressee is within or without a free delivery district must rest upon the company, where the addressee lives within the limits of a town or city.
    [Ed. Note — For other cases, see Telegraphs and Telephones, Cent. Dig. § 33.]
    3.Trial <&wkey;260(10) — Failure to Deliver Message — Instructions—Measure oe Damages.
    While an instruction that the plaintiff was not entitled to recover any damages for grief occasioned by the death of his mother was proper, its refusal was not reversible error, where the court in its charge confined recoverable damages to only those occasioned by such mental anguish as was suffered by the plaintiff through the neglect of the company to make prompt delivery of the messages and his being thereby prevented from attending his mother’s funeral.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 659.]
    Error to Court of Civil Appeals of Fifth Supreme Judicial District.
    Action by E. L. Wilson against the Western Union Telegraph Company. From a judgment of the Court of Civil Appeals (152 S. W. 1169), affirming a judgment of the district court for the plaintiff, defendant brings error.
    Affirmed.
    N. L. Lindsley, of Dallas, and Geo. H. Fearons, of New York City, for plaintiff in error. G. W. Hardy, of Shreveport, La., and Gibson & Callaway, of Dallas, for defendant in error.
   PHILLIPS, C. J.

The suit was for the failure of the telegraph company to make prompt - delivery of two telegrams sent the plaintiff at Oil City, Louisiana, on April 19, 1911, announcing the death of his mother, whereby, it was claimed, he was prevented from attending her funeral.

Both telegrams were promptly received at the company’s office in Oil City before ten o’clock on the 19th, the same morning they were sent. They were not received by the plaintiff until the 21st, and then through the post-office at Oil City, where they were deposited by the company for mailing on the morning of that day. While there was evidence of some inquiry for the plaintiff made by the company in an effort to deliver the messages on the 19th, there was evidence on the other hand warranting a finding that by ordinary diligence on its part the delivery could have been made to him in Oil City during that day, which would have enabled him to reach the place of the funeral in time. This consisted of proof that he was in Oil City and about its business section during all of the forenoon of that day and until 1:30 in the afternoon; that it was a small place, having only about twenty four business places, and that he was generally known there.

The plaintiff at the time actually lived in what had been the old village of Caddo, the location of which was distant about a half or three-quarters of a mile from Oil City. Both places were on the same railroad line, Caddo being the older place. Upon the discovery of oil in the vicinity of Caddo, Oil City grew up, and from the evidence it seems Caddo practically moved to it. When these messages were received Caddo consisted .only of one store, a section house, and two or three other houses. Houses were scattered up and down the railroad between the two- places. According to some of the evidence there was nothing separating the two places. Caddo had neither railway station, nor post-office. Persons living there made use of the station and post-office at Oil City.

A special charge was requested'by the telegraph company to the effect that inasmuch as the telegrams were sent upon the understanding that they were not to be delivered outside of the company’s established free delivery limits in Oil City, it was not bound to make such delivery outside of those limits. The charge was refused. There was evidence that the company’s free delivery limits in Oil City were confined to a radius of a half mile from its office. The house in the old village of Caddo where the plaintiff lived was distant more than a half mile from the company’s office.

According to the proof, Oil City and Caddo were practically one place. They had substantially grown together, and Caddo could hardly be regarded as having any separate existence. The question presented, therefore, is simply whether the company was bound to make the delivery outside of its free delivery limits in Oil City.

When the messages were received for transmission at the company’s sending office it made no demand for any extra charges to cover their delivery outside of its free delivery limits at the place where they were addressed. The question is accordingly plainly ruled by Telegraph Company v. Harris, 105 Tex. 320, 148 S. W. 284. There, the telegraph company defended upon the same ground, namely, that the addressee of the message, though residing in the town of the receiving office, lived beyond the company’s free delivery limits as there established, and, hence, it was under no duty to make the delivery beyond such limits, no extra compensation therefor having been paid or guaranteed by the sender of the message. No demand for such extra compensation, however, was made by the company at the sending office. The fact that the addressee lived outside of the free delivery limits was held under such circumstances to constitute no defense. In the opinion of Mr. justice Dibrell is found this clear statement of the law upon the subject:

“We think the legal effect of permitting telegraph companies to prescribe reasonable free delivery districts beyond which they are authorized to make an extra charge for delivering messages, should and does not affect the question 'of promptness of delivery, except in those cases where a demand is made on the part of the company for the extra fee and the sender fails or refuses to pay such extra charge or guarantee its payment. The burden of ascertaining whether the addressee is within or without the free delivery district must rest upon the company, where the addressee lives within the limits of a town or city. It is not reasonable to suppose the sender of a message is familiar with the limits of the free delivery district prescribed by the telegraph company. The company forms the free delivery district and if it wishes to collect the extra tee it is incumbent upon such company to ascertain from the sender the exact location of the sendee in the place where the message is to he transmitted. If that be a burden it rests lighter upon the shoulder of the company than upon that of the sender. The district is of its creation and for its benefit, and we are not willing to say that it is incumbent upon the sender of a message to ascertain at his risk the limits of such free delivery district and tender the extra compensation, but the company must determine that fact from the information in its possession or from such information as may be given it by inquiry of the sender or from other sources, and then make demand for the extra charge. If the addressee lives without the free delivery limits and the sender refuses to pay the extra charge or guarantee its payment, then the company would be justified in refusing to make delivery of the message. ⅝ * ⅜ There being no allegation (in the plea of the company) that a demand was made by the company for the extra charge and that such extra charge being demanded the plaintiff failed to pay it or guarantee its payment, no legal defense was presented to excuse the want of a prompt delivery of the message.”

Another special charge was requested by the telegraph company, addressed to the measure of damages, which, in substance, amounted to an instruction that the plaintiff was not entitled to recover any damages for grief occasioned by the death of his mother. The charge of the court confined the recoverable damages to only those occasioned by such mental anguish as was suffered by the plaintiff' through the neglect of the company to make prompt delivery of the messages and his being thereby prevented from attending his mother’s funeral. While it would have been proper to give the requested special charge, and we regard the giving of such a charge as the better practice in cases of this character, the judgment should not be reversed because of its refusal. This court so held in Telegraph Company v. Smith, 88 Tex. 9, 28 S. W. 931, 30 S. W. 549, reviewing the opinion of the Court of Civil Appeals for the Fifth District and the dissenting opinion of Chief Justice Lightfoot upon this question, found reported in 30 S. W. 937.

The judgments of the District Court and Court of Civil Appeals are affirmed.
      <&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: YANTIS, J.

license: Public Domain

text:
    HORN v. WESTERN UNION TELEGRAPH CO.
    (No. 2475.)
    (Supreme Court of Texas.
    April 25, 1917.)
    1. Telegraphs and Telephones <&wkey;66(4)— Failure ro Deliver Message — Evidence— Sufficiency.
    In an action for damages for failure to promptly deliver a telegram’, evidence held to show that the person who received the message although not an employé of the defendant had limited authority to represent the defendant in receiving the message and accepting the payment therefor and to accept as notice to the defendant the statement of the person delivering the message as to the purpose of sending it.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 63.]-

      2. Telegraphs and Telephones &wkey;>38(6)— Delivery oe Message — Notice of Relationship.
    AVhere a telegraph message related to death, notice of relationship could be conveyed by an oral statement to the agent of the telegraph company as effectively as if imparted by the terms of the message.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 33.]
    3. Telegraphs and Telephones <&wkey;6§(5)— Failure to Deliver Message — Mental An g uisi r — N otice.
    AATliero the agent of the telegraph company ■was told that tlie message, telling of the death of a baby, vas sent in behalf of its mother to her sister, and that the, mother wanted the sister to be present at the burial of the child, it was sufficient notice to the telegraph company that the mother would probably suffer mental distress from a failure of the sister to attend the burial.
    [Ed. Note. — For other cases, see' Telegraphs and Telephones, Cent. Dig. § 70.]
    ■4. Telegraphs and Telephones <&wkey;68(5)— Failure to Deliver Message — Damages— Mental Anguish.
    Recovery may be had for the negligence of a telegraph company in the delivery of a message, telling of the death of a baby to the sister of its mother, which was the proximate cause of mental anguish on the part of the mother from the failure of the sister to attend the child’s funeral, where the telegraph company had notice that such injury to her feelings might result from negligent breach of the contract to deliver the message promptly.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 70.]
    5. Telegraphs and Telephones <&wkey;68(4)— Failure to Deliver Message — Mental Anguish — Evidence.
    Where through the negligence of a telegraph company in the delivery of a message telling of the death of a baby to the sister of its mother the sister was unable to attend the baby’s funeral, the fact alone of blood relationship between the sisters would justify the inference that injury to the mother’s feelings resulted.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 70.]
    G. Trial <&wkey;2S3(3) — Instructions—Ignoring Issues — Failure to Deliver Message.
    In an action for negligence in delivery of a telegraph message presented in the evening at an office which closed at night and did not open until 8 o’clock, an instruction, allowing recovery if the agent agreed to transmit the message by 6:30 or 7 the next morning and failed to do so, was erroneous, since the telegraph company was entitled to have the jury pass upon the reasonableness of the office hours so established as a complete defense to the charge of negligence in not sending the message before 8 o’clock, and the agent had no authority to change the regulation if it had been established and was reasonable.
    ’ [Ed. Note. — For other cases, see 011131, Cent. Dig. § 6X6.]
    Error to Court of Civil Appeals of Sixth Supreme Judicial District.
    Action by A. R. Horn against the Western Union Telegraph Company. From a judgment of the Court of Civil Appeals (149 S. W. 557), reversing and remanding a judgment of the District Court for the plaintiff, plaintiff brings error.
    Judgment, reversing and remanding, affirmed.
    R. D. Allen, of Sulphur Springs, for plaintiff in error. N. D. Lindsley, of Dallas, and Geo. H. Fearons, of New York City, for defendant in error.
   YANTIS, J.

The plaintiff in error, A. R. Horn, recovered a judgment against the dej fendant in error, the Western Union Telegraph Company, for the alleged failure to promptly deliver the following telegram:

“Mount Vernon, Texas, May 16, 1910.
“Sam Smith, 1311 Grove Street, N. Fort Worth, Texas. Bill Horn baby died last night, ten thirty. Come at once. J. W. Condrey.”

It was alleged that Mrs. Sam Smith, the wife of the addressee of the telegram, was the sister of Mrs. A. R. (Bill) Horn, and that the message was sent by Condrey at the request of A. R. Horn, for the benefit of his said wife, because she desired her sister’s presence with her at the funeral of her baby, and that Mrs. Horn suffered mental distress as a result of the failure of Mrs. Smith to lend her presence at the funeral, which failure to so attend was caused by the negligent failure of the defendant to promptly transmit and deliver said message. The trial was had in the district court of Hopkins county. From a verdict in favor of the plaintiff in error the defendant in error prosecuted an appeal to the Court of Civil Appeals for the Sixth District at Texarkana. That court reversed and remanded the cause. 149 S. W. 557. A writ of error was granted by this court on the petition of plaintiff in error.

We are of opinion that the Court of Civil Appeals erred in holding that there was no evidence to show that John Knowles, who received the telegram for transmission from J. W. Condrey, was the agent of the Western Union Telegraph Company. We think there is evidence tending to show that John Knowles, though not an employé of the defendant in error, had authority to represent the Western Union Telegraph Company in receiving the message and in accepting the pay, as he did, in its behalf to render the service of promptly transmitting and delivering the message.

The evidence shows that a man named Black was the regular agent at Mt. Vernon, for the defendant in error; that he had very little work to do for them, few Western Union messages being sent from Mt. Vernon; that he was also an agent of the St. Bouis Southwestern Railway Company at said place, and a portion of his time was employed in discharging his duties as such railway agent; that his office was in the railway depot; that two other railway agents, the day agent and the night agent, occupied the same office; that the railway company had a telegraph instrument in said office which it used exclusively in its own behalf in transmitting and receiving messages directing the operations of its trains; that the telegraph company also had its own instrument for use in the sending and-receiving messages in the conduct of its own business ; that the two instruments were side by side, only a few inches apart; that there was some hind of a contract between the railway company and the telegraph company re-la ting, to the interchange of services by their respective employés; that the telegraph company hept a hook on which to hang the messages left with it for transmission; that it had been a custom for many years, in the absence of the telegraph company’s agent at night, for the railway agent to receive the messages for transmission by the telegraph agent when he should come upon duty for the telegraph company the following morning, when he would send them; it was also a custom for the railway agent himself occas-sionally to send such messages as an accommodation, as the one in question was sent by the day agent of the railway company, while the regular telegraph agent was temporarily absent from the office, perhaps engaged in work for the- railway company. Condrey, in behalf of Smith, when he delivered the telegram to Knowles for transmission, explained its purpose to him, and paid him 25 cents, the regular charge made by the telegraph company for sending such a message. Knowles hung the message on the telegraph company’s hook, which was by it provided, and promised that the telegraph agent would send it the following morning, the message being received by him late at night. On the next day Knowles delivered the money which had been paid to him for the transmission of the tfelegram to Black, the agent of the. telegraph company.

We think these -circumstances constitute some evidence of probative force, to the effect that Knowles had the limited authority to receive, in behalf of the telegraph company, the message for transmission, and to accept as notice to the company the statement of Condrey as to the purpose of sending the message. We, therefore, are of the opinion that the Court of Civil Appeals erred in holding there was no evidence that Knowles was the agent of the telegraph company. The telegram upon its face does not convey to the telegraph company any notice that it was intended for the benefit of Mrs. Smith. If we look alone to the terms of the telegram, the defendant in error would not be liable for the lack of such notice. Telegraph Co. v. Luck, 91 Tex. 178, 41 S. W. 469, 66 Am. St. Rep. 869. But such notice may he given independent of the message as effectively as if imparted by the very terms of the message. Herring v. Telegraph Co., 185 S. W. 293; Id., 60 Tex. Civ. App. 5, 127 S. W. 882; Telegraph Co. v. Coffin, 88 Tex. 94, 30 S. W. 896; Telegraph Co. v. Bell (Civ. App.) 90 S. W. 714; Telegraph Co. v. Hidalgo (Civ. App.) 99 S. W. 426; Telegraph Co. v. Russell (Civ. App.) 31 S. W. 698.

The evidence in this case tends to show that the telegraph company had notice from Condrey, the agent of Smith, in sending the telegram, that Mrs. Smith was the beneficiary of the telegram. Condrey testified that when he gave the,,message to Knowles, the company’s receiving agent, he told him;

“I want to be sure so Mrs. Smith will be sure to come on that train.” “I want that message to get to her in time for her to take that train, because Mrs. Horn wants her sister to be at the burial.” “I told this agent that Mr. Horn instructed me to tell hi* that Mrs. Smith was a sister of Horn’s wife, and that she wanted Mrs. Smith to be at the burial of his child.”

We think this is evidence tending to show that the telegram was being sent for the benefit of Mrs. Horn, from which it could be reasonably contemplated that Mrs. Horn would probably suffer mental distress from a failure of Mrs. Smith to attend the buriaL

We think the contention that Horn is not entitled to recover for his wife’s mental anguish which resulted to her on account of the absence of her sister at the burial is without merit, and should he overruled. If such mental anguish was proximately caused by the negligence of the defendant in error in failing to promptly deliver the message, we can see no good reason for denying a recovery, where the telegraph company had notice that such injury to her feelings might result from a negligent breach of the contract. Telegraph Co. v. Simmons (Civ. App.) 93 S. W. 688; Western Union Telegraph Co. v. Tom Tucker, 194 S. W. 130, decided by this court at its present term.

We think the Court of Civil Appeals erred in holding that there was no evidence of damage to Mrs. Horn in the failure of her sister to attend the funeral. It is true that the evidence of such damage is very briefly stated, but it is some evidence from which the jury could infer that some damage resulted. The only evidence that mental anguish resulted to Mrs. Horn from the absence of Mrs. Smith at the funeral was that they were sisters, and had been together all their lives until they were married, and that they were very dear to one another. But we think this is evidence of some probative force from which the jury would be privileged to infer that injury to Mrs. Horn’s feelings resulted. In Telegraph Co. v. Coffin, 88 Tex. 94, 30 S. W. 896, this court, speaking through Mr. Justice Brown, said:

“From the fact of blood relationship, if it exists, a jury may, without other proof, infer that mental anguish was occasioned by the failure to be present at the bedside of the sick, or at the funeral of the deceased relative.”

We think this holding is sound, whether applied in favor of the sender who claims damage to himself for the failure .of a blood relative to attend him in time of sickness or death in his family, or applied in favor of the sendee'for failure to attend the sickness or death of a blood relative.

In section 5 of the main charge the court directed the jury that if they believed John Knowles “in receiving the message in controversy contracted and agreed with J. W. Condrey to transmit said message to Sam Smith by 6:30 or 7 o’clock on the 16th day of May, 1910, in time for the sister of plaintiff’s wife to arrive at the burial of the child of Bill Horn, as alleged in the plaintiff’s petition,” etc., to find in favor of the plaintiff. In • the state of the evidence we think this charge was erroneous. Witnesses had testified in behalf of the defendant in error that the telegraph company had established rules and regulations for office hours in the town of Mt. Vernon, and that under such rules and regulations the telegraph office was closed at night and until 8 o’clock in the morning. The defendant in error had a right to have the jury to pass upon the reasonableness of the office hours so established, as a complete defense to the charge of negligence as to not sending the telegram on the morning in question at 6:30 or 7 o’clock, or at any hour earlier than 8 o’clock. The effect of the charge in question was to deny such defense to the defendant in error, and to hold it guilty of negligence in failing to comply with the agreement which Condrey made with Knowles, according to the former’s testimony, to send the message by 6:30 or 7 o’clock on the 16th day of May, 1910. Knowles had no authority to change the regulation if it had been established and was a reasonable regulation. And if he agreed so to do, it would not be binding upon the telegraph company. This error requires a reversal of the judgment of the district court. Accordingly the decision of the Court of Civil Appeals, to the effect that the plaintiff in error was not entitled to recover under the evidence, should be held to be erroneous, while its judgment reversing and remanding the judgment of the district court for the error in the charge indicated herein, should be affirmed; and it is so ordered.
      ®=oFor other oases see same topic and KEY-NUMBRR in all Key-Numbered Digests and Indexes

      c®=oEor otter eases see same topic and KEY-NUMBER to all Key-Numbered Digests and Indexes


author: MORROW, J. PRENDERGAST, J.

text:
    BISHOP v. STATE.
    (No. 4366.)
    (Court of Criminal Appeals of Texas.
    March 28, 1917.)
    1. Criminal Law &wkey;1166%(l) — Appeal — Refusal to Put Witnesses under Rule— Prejudicial Ebrob.
    In a prosecution for murder, although court asked parties before trial if either desired the rule, refusal to put witnesses under rule after they had been seated at request of court is reversible error, where it does not clearly appear that no injury could have resulted, in view of Vernon's Ann. Code, Or. Proc. 1916, art. 719, providing that on request of either party the witnesses may be sworn and placed in custody of an officer, and removed to some place where they cannot bear testimony.
    2. Criminal Law &wkey;665(l) — Triai>-Separation op Witnesses.
    Under Vernon’s Ann. Code Or. Proc. 1916, art. 719, providing that on demand of defendant the court may swear the witnesses and exclude them from the courtroom in custody of an officer, discretion of court is not arbitrary, nol-is defendant limited to any particular time for making demand for exclusion of witnesses, but may do so at any time while evidence is being taken.
    [Ed. Note.' — For other eases, see Criminal Law, Cent. Dig. §§ 1549, 1555, 1566, 1566y2.]
    Prendergast, J., dissenting.
    Appeal f^om District Court, Jones County; Jno. B. Thomas, Judge.
    W. T. Bishop was convicted of murder, and he appeals.
    Reversed and remanded.
    R. E. Rodgers and Jack Rattikin, both of Anson, James L. Shepherd, Jr., of Colorado, Tex., and A. C. Smith and E. T. Brooks, both of Anson, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was indicted and convicted of murder, and his punishment assessed at death.

The evidence was wholly circumstantial. There were more than 90 witnesses. Before the trial began the court asked if either party desired the rule. Receiving no reply, he directed the witnesses to take their seats. About that time appellant’s counsel requested the court to put the witnesses under the rule, and this request being refused, appellant excepted.

“The expedient of separating • a party’s witnesses, in order to detect falsehood by exposing inconsistencies, seems to have been early discovered and long practiced in various communities. Though probably not in itself older or more widespread than some other fundamental notions of proof, nevertheless its age and universality have come to be more emphasized in our own legal annals because of the instance recorded and handed down in the Apocryphal Scriptures. The story of Daniel’s judgment in Susanna’s ease has given to this expedient a unique and classical place in our law as well as in our literature.” 3 Wigmore on Ev. § 1837, p. 2381.

The story of Susanna is familiar. Her accusers testified in the presence of each other to her guilt. She was- about to be condemned when Daniel interposed, saying: “Put these two aside, one far from another, and I wiil examine them.” His examination disclosed such discrepancies in their testimony as resulted in the release of Susanna and the condemnation of her accusers. Since then the importance of the separation of witnesses has been regarded as a valuable adjunct to the cross-examination of witnesses and a right accorded whenever demanded in the trial of causes. 3 Wigmore on Ev. § 1837, p. 2382; Sir Walter Raleigh’s Trial, 1 Jardine, Crim. Tr. 419; Sidney’s Trial, 9 How. St. Tr. 817, 861; Rosewell’s Trial, 10 How. St. Tr. 147, 190; Cook’s Trial, 13 How. St. Tr. 311, 348, note; Fenwick’s Trial, Id. 537, 722; Braddon, Observations on the Earl of Essex’s Murder, 9 How. St. Tr. 1229, 1278, 1283, 1294; 2 Bishop’s Crim. Proc. § 1188.

With reference to the matter, Mr. Wigmore in liis work on Evidence (volume 3, § 1839, p. 2388) uses the following language:

“No rule, therefore, should ever bo laid down which will by possibility deprive an opponent of the chance of exposing perjury. Finally, it cannot be left with the judge to say whether the resort to this expedient is needed; not even the claimant himself can know that it will do him service; he can merely hope for its success. He must be allowed to have" the benefit of the chance, if he thinks that there is such a chance. To require him to show some probable need to the judge, and to leave to the latter the estimation of the need, is to misunderstand the whole' virtue of the expedient, and to deny it in perhaps that very situation of forlorn hope and desperate extreme when it is most valuable and most demandablo.”

Erom Watts v. Holland, 56 Tex. 59, we take the following quotation:

“The existence of the rule, as applicable to all kinds of cases, is not, of course, to be confounded with the regulations concerning its application to a given case. The common-law rule of evidence and procedure confides to the judge a discretionary authority as to when the rule may be invoked and enforced. In our state no such discretion is extended to the judge in criminal cases; the statute (article 662, R. S., Code Proe.) gives the right to either party to invoko the rule (Brown v. State, 3 Tex. App. 295). Whilst it is laid down by text-writers, whose conclusions are well supported by authority, that the enforcement of the rule lies within the discretion of the court, high authority is not wanting to maintain the rule as one which parties are entitled to demand the enforcement of. Alderson, B., in Southey v. Nash, 7 O. & P. 632 (1 Greenl. § 432, note 1), expressly recognized it as ‘the right of either party, at any moment, to require that the unexamined witnesses shall leave the court.’ ”

Erom the opinion in the same case we quote the following:

“As thus laid down by both of those standard authorities (1 Greenl. on Ev. § 431, and Phillips on Ev. vol. 2, p. 395), what is called ‘a rule’ seems to be intended as such in fact, as well as in name; a definite regulation proscribed by the law for the conduct of trials — uniform and universal — to which all parties litigant are entitled, subject to such judicious regulations confided to the judge’s discretion ’as right and justice exact. It is a rule for the ascertainment of truth, and the doing of justico, wherever the purposes of both require it; and being a rule of law to regulate trials, every citizen, under the Constitution and laws of the country, is entitled to its benefits as a part of the law. To capriciously deny it to him to the deprivation of his property would be to do so without sanction of law — ‘the law of the land.’ * * * The refusal, in a proper case, to administer to a party the benefits of a rule of law, on which the security in his rights of property depended, * * ⅜ would amount, in effect, to the substitution of an unregulated, and, as it might be, capricious and despotic, discretion in name, but mere personal will in fact, for the ‘law of the land.’ ”

From the opinion of Judge Wheeler, in the case of Hipp v. Bissell, 3 Tex. 21, we quote the following:

“When there is no rule, or when the rule is inapplicable, or does not afford a perfect guide, then there is room for discretion; and from the necessity of the case, it must exist. There may be cases to which no known rules or fixed principles can be applied; and the discretion which must be exercised cannot be the subject of revision. But when there are known rules of action prescribed, there can bo nowhere a discretion to dispense with those rules.”

The text-writers and authorities discussed so far relate to the right to have the separation of the witnesses given by the common law. This right as it pertains to criminal procedure was crystallized into a statute in this state at an early date, providing that on request of either party the witnesses may be sworn and placed in custody of an officer and removed out of the courtroom to some place where they cannot hear the testimony as delivered by any other witness in the case. This is termed placing the witnesses under the rule. Article 719, O. O. P.

The impracticability of applying the rule to all witnesses has been recognized both under the common-law practice and the enforcement of the statute mentioned. Thus persons assisting in the prosecution or defense and parties to the suit aré among those who are exempt, and it happens at times that some witness or witnesses are discovered after the trial begins or by inadvertence over-' looked at tbe beginning of tbe trial, and wlio from these and other causes have heard some of tbe testimony, and it has been generally held that in determining tbe circumstances under which such witnesses may or may not testify the court may exercise a judicial discretion, which will not be reviewed in tbe absence of its abuse. Vernon’s Ann. C. G. P. art. 719, and cases cited.

Many cases are listed at pages 398, 399, Vernon’s Ann. O. O. P., illustrating tbe application of this principle to various states of fact, and finally the rule deduced from these cases is stated at page 399 as follows:

“On any trial, at the request of either party, the witnesses may be placed under the rule, and those summoned for the prosecution may be kept separate from those summoned for the defense, if the court sees proper to so direct; and they may be placed in the custody of an officer or be allowed to go at large, under a like discretion. The trial judge is invested with a wide discretion in all matters relating to this procedure, and such discretion will not be' revised on appeal unless it has been abused, but the right to have witnesses placed under the rule is a right given by law, and it should not be denied or substantially abridged at the arbitrary discretion of the judge. McMillan v. State, 7 Tex. App. 142; Walling v. State, 7 Tex. App. 625; Shields v. State, 8 Tex. App. 427; Estep v. State, 9 Tex. App. 366; Avery v. State, 10 Tex. App. 199; Johnson v. State, 9 Tex. App. 571; Hoy v. State, 11 Tex. App. 32; Cross v. State, 11 Tex. App. 84; Powell v. State, 13 Tex. App. 244; Walker v. State, 17 Tex. App. 16; Kennedy v. State, 19 Tex. App. 618; Bond v. State, 20 Tex. App. 421; Goins v. State, 41 Tex. 334; Sherwood v. State, 42 Tex. 498; Bland v. State [42 Tex. Cr. R. 286] 59 S. W. 1119.”

In Clary v. State, 68 Tex. Cr. R. 290, 150 S. W. 919, this court, in an opinion written by Judge Harper, used the following language:

“The court in approving the bill states that, when the witnesses were sworn, he asked if it was desired that the witnesses be placed under the rule, and no request was made, but that subsequently defendant did make the request. We will state that, when the request was máde, it should have been granted, as article 719 of the Code of Criminal Procedure gives to the defendant the right to make this demand at any time while the evidence is being heard.”

The question here presented is not one in which one or more witnesses are excused from the rule and permitted to testify, but it is one in which the question presented to the court is whether the arbitrary denial by the trial court of the right to have the witnesses separated when testifying can be sanctioned by this court. The appellant’s defense was insanity. He introduced some 30 witnesses on the trial. These with the 60 witnesses introduced by the state were permitted to remain in the courtroom during the trial and hear all the testimony. This court, in the case of Heath v. State, 7 Tex. App. 465, said:

“While the law vests a large discretion to trial judges as to the examination of witnesses and the enforcement of the rule, when the same has been requested by either party, yet this discretion is not arbitrary; nor is the statute giving the rig'ht merely directory, and to be disregarded at pleasure. * * * ‘The right to enforce the rule is a right given by law, and it should neither be denied nor substantially abridged at the arbitrary discretion of the presiding judge.’ Being a right guaranteed by law. a defendant should not. after a request for its enforcement, be deprived of its benefit, unless it should clearly appear that no possible injury could result to him from its relaxation.”

The statute guarantees a substantial right. That the statute should not be annulled by judicial interpretation is to the interest not only of the appellant in this particular case,' but to the interest of society, the state. To require the appellant to point out with particularity the effect of the refusal of the trial court to accord him the statutory right to have the witnesses put under the rule would be practically to deny him the right. As said by the Supreme Court in Watts v. Holland, 50 Tex. 65:

“It would be in its effect a breach of judicial trust to deny the applicant its benefits, when the rule is invoked under such circumstances.”

What discrepancies might have been disclosed by tlie cross-examination of the witnesses testifying separately, what links in the chain of circumstantial evidence might have been left in doubt, what additional facts on the issue of insanity might have been disclosed had the trial been conducted according to law, are necessarily matters for conjecture. It does not “clearly appear that no injury could have resulted.” We do know that in the trial thus conducted the appellant has been condemned to suffer not only the highest punishment prescribed for the offense, but the highest punishment that man has the power to inflict. Chief Justice Phillips, delivering the opinion of the Supreme Court, in Scott v. Townsend, 106 Tex. 339, 166 S. W. 1138, said:

“A legal trial is as important as a correct result. We have no disposition to lightly reverse the action of a trial court. Without any tendency to emphasize errors that are immaterial its judgment should be accorded the presumptions the law imparts to it. But the rules of law, by whose observance only can rights be legally determined, are entitled to the same deference, and have an equal claim upon the conscience of a court.”

Conscious of the fact that appellant has not received a legal trial, uncertain as to the consequences thereof upon his case or upon the punishment, we are constrained by a sense of duty to award him another trial.

The judgment is reversed, and the cause remanded.

PRENDERGAST, J.

(dissenting). The clear, uncontradicted, and unimpeached testimony in this cause establishes, without a shadow of doubt, that appellant committed one of the most horrible murders in the perpetration of robbery it has ever been my duty to consider. It conclusively shows he lured an old man, John Evins, from his home near Roby to go with him to San Angelo under the false pretense that he would buy Mr. Evins’ place. They started in appellant’s buggy, and camped out the first night. They went to bed lying side by side on a pallet made by appellant out of his quilts. In the dead hours of the night, while the old man peacefully slept, wholly unsus-picious of any danger, appellant got up, knocked him in the head, striking him twice with the blade, and twice with the back, of an ax — the doctor swearing, and the licks demonstrating, that each was fatal. He then robbed him of his money and watch, stripped his body entirely nude, hauled it in his buggy to a tank, and threw it therein, intending to conceal it. But the water being too shallow, he waded into the tank, tied a rope around the neck, dragged it out, replaced it in his buggy, hauled it off some distance, dumped it over a fence, dragged it by the rope to a rather secluded place, buried it in a hole, and covered it up so as to entirely conceal it from view. He gathered up three buckets full, where deceased’s lifeblood had run on the ground, threw them in the tank, and tried to obliterate every trace of the horrible murder.

While no witness testified that he saw him actually kill and rob Mr. Evins, that he, and he alone, committed these horrible crimes, is so completely demonstrated by all the physical facts, and such a chain of circumstances as no one can for a moment doubt that he alone killed and robbed him. All the testimony excludes the idea that any other than he had any part whatever in the crimes. Every link in the chain of circumstances, and physical facts, is complete and perfect. No link is weak or missing. No full, detailed statement of the testimony of the several witnesses is nefcessary. While I make this condensed statement from the evidence somewhat chronologically, as a matter of fact, the testimony was not so introduced. On the contrary, the witnesses were introduced and testified without regard to any connected order, and each testified to an isolated fact or facts, so that none of the witnesses could know that his testimony would establish, or tend to establish, any link in the chain which would or could connect to make a complete chain and thereby convict appellant. Some of the witnesses who testified last made out the first links in the chain, and some of these were introduced by appellant himself. There is no contention or suggestion that any witness swore falsely in any particular.

Appellant married on January 1, 1902, in Hamilton county, and lived there nearly four years. After he left that county in 1905 he lived with his family at various places in Mitchell, Scurry, and some other counties. He farmed some at first; after-wards worked around at any and every thing he could get to do. He frequently talked about buying a place to live. About September 1, 1916, he borrowed a horse and buggy from' a neighbor ana started out to find and buy a place to move his family to. A day or two later he reached Fisher county and began inquiring for a place to buy. He was told by some one that said Evins had a 160-acre place a few miles in the country for sale. He inquired of different persons where he could find him, and succeeded in finding him.

Mr. Evins was an old bachelor about 63 years old, and boarded and worked with a family a few miles from his own place. He had rented his place to another party for 1916, and the renter was occupying it. Mr. Evins had lived in that community many years, and was known by a great many people. He had a cancer on or near one of his eyes. About September 3d appellant found Mr. Evins at a place where he was at work. He told him his business, and asked him if he had a place for sale. He learned from him that he had such a place a few miles away, and appellant went and examined the place, and was satisfied therewith and the price. After satisfying himself that the place and price suited, he then at different times took Sir. Evins in his buggy, and went about to different towns for different purposes. He was seen by many persons during this time at these different places with Mr. Evins, and told different ones of them that he was going to purchase Mr. Evins’ place. After progressing this far he went over to Sweetwater, and there made some inquiry of one of the attorneys about purchasing land, and how the deed could be made, and what kind of a deed would be good. While at Sweetwater he got a lady stenographer to typewrite him a letter and a postal card, both of which he addressed to himself, the card to Royston and the letter to Roby, signing the name O. IT. Cable to each, purporting to be his lawyer. In the card he wrote that he had written to him at Roby not knowing at which post office he would get his mail, and that he had given him an outline to go by. In the letter he wrote:

“Tour wife gave me a letter from you, regarding which I will state this: Have the man from whom you are buying come here to my office in San Angelo; let him bring all his land and town lot papers, also a letter of introduction and recommendation from his banker; thon we can fix up his short order. Be sure to have (him) show you and you mark those unmarked or unfenced corners.”

The card and letter were .dated September 9th, He personally applied to! the postmasters at the respective places a day or two later, and had .them delivered to him, which he showed to various persons and to deceased, or told them of having received them, and the contents thereof. Mr. Evins had a bank account in a bank at Roby, and had about $700 on deposit there at the time. He went with Mr. Evins to this bank, and the matter was explained to the bankers, and the banker gave to Mr. Evins a letter of introduction and recommendation dated September 12th. At this time Mr. Evins, on his check, drew| some more money from the bank, having drawn some a few days before, telling that he was going to San Angelo with appellant, and might need some more money. Appellant and deceased were together from this time until the next night, when appellant killed and robbed deceased. They were seen' together by various persons at various places from the time appellant got hold of deceased, and one or both had .conversations with various persons about the trade pending between them, and the fact that they were going to San Angelo to close it up. Late in the evening of September 13th they together reached the railroad town of Longworth on a railroad which ran direct from that station to San Angelo.

After getting their suppers that night they camped right back and near to Mr. Sellers’ hotel in an unfenced open space. They went to bed there together on a pallet on the ground made by appellant’s quilts, which he carried about with him in the buggy. That night appellant killed Mr. Evins with an ax, striking him with the blade of it two licks, which penetrated his skull, and two other licks on his head with the back of the ax, which crushed his skull. The doctor testified that either of the licks would have proved fatal. The ax was found near the place with blood on both the blade and handle. The ax showed that he had attempted to wipe off the blood from the face, and scraped the handle with his gapped knife. When appellant was arrested the next day his gap-ped knife was found on him, and it was fitted tO' where the handle had been scraped therewith. The buggy tracks were traced on the ground from where he killed him to a public town tank. The tracks of the buggy were right up to the edge of the water in the tank. The ground where deceased was killed was scraped up, and nearly all of the blood from deceased, with the trash and dirt, was placed in three buckets. These ■ three buckets were found in the tank with this fresh blood, dirt, and trash in them, the buckets being inverted, two of them out of sight, but the other right at them, part of which could be seen from the bank. There was some blood on the buggy seat and cushion and in the buggy, and drops of blood from where it had been stopped and the body taken out of the buggy into the water. Appellant’s tracks in the tank without shoes on were found where the buggy had been stopped. The water where the body had been 'thrown was shallow and tire mud somewhat deep. Where the body had been thrown into the tank the water was not deep enough to entirely conceal the body. He tied a rope around the neck of the deceased, dragged his body out, and placed it back in the buggy. He then took the body some distance away on the branch or creek where the tank was, and all crumpled up buried it in a hole partly made by a washing out, and partly dug out by him with a grubbing hoe. The body then was covered up with dirt so as to entirely conceal it from view.

Appellant was seen by various witnesses at this tank with his buggy very early on the morning of the 14th between daylight and sunup. The grubbing hoe with which the digging and covering up were done as well as the ax belonged to Mr. Sellers, the hotel keeper. The grubbing hoe was found some days later near whore the body was. Early on the morning of the 14th, appellant went to the house of one of the residents of the town, called for water to wash his hands and forearms, telling the man that while down at the tank that morning watering his pony the pony had jerked him into the mud in the tank. He also that morning told different persons that Mr. Evins had taken the train that morning just before day for San Angelo. A witness who met the train on this occasion testified that Mr. Evins did not get on the train that morning.. The place of the burial of the body was discovered by different parties and attention called to it about the middle of the morning of the 14th, but no one was aroused sufficiently to go to the place and ascertain what was buried there until about 12 o’clock, when some parties went there, scraped some of the dirt off, and found the leg of a human body. An alarm was given, and the justice of the peace and many others went to the place and dug out the body. It was entirely nude. A rope was around the neck. The body was very muddy all over with mud from the tank where it had been thrown in and dragged out, except on the back. At the fence near where the body was buried it was shown that the body was thrown over the fence and dragged from there on the ground to the place where it was buried. This dragging over the weeds and grass scraped off some of the mud and exposed some of the skin on the back. About the middle of that morning appellant alone in the buggy left Long-worth and went to Sweetwater. As soon as he reached Sweetwater he bought him an entire new suit of clothes and shirt. When he reached there he had on no top shirt, but an undershirt. His pants and shirt were muddy with the mud that came out of said tank. After getting the new clothes he took them to a barbershop, got a bath and put them on. He took his old muddy clothes in a bundle back to his buggy and placed them therein. Soon after the body was discovered and exhumed, and thoroughly and completely identified as that of Mr. Evins by a great many people, search was made for the deceased’s clothes by different persons, but they were never found. Soon after appellant came out of the barbershop he was arrested for the . murder. On his person the deceased’s watch was found and thoroughly identified, and his title deeds to his tract of land and town lots. Some money was also found on his person, and a purse with some blood on it. The clothes that he had removed at the barbershop were then found in his buggy, as were his quilts, and examined. There was mud and fresh blood on them, the mud corresponding with the mud at said tank.

There are a great many other facts and circumstances, all showing without doubt that aijpellant killed and robbed the deceased under the circumstances stated, but it is deemed unnecessary to here state them.

Appellant’s sole defense was claimed insanity. It is unnecessary to recite the testimony on this point. It is sufficient to say that while weak and only a very few of his witnesses’ evidence raised the question, it authorized the court to submit that issue to the jury, which the court did in a correct charge, which is in no way attacked either in this or the lower court. When the case went to trial the court asked both sides if they wanted “the rule” enforced. Neither party then requested it, and the court had the witnesses sworn and seated in the courtroom. However, before any witness was placed on the stand, appellant requested the court to enforce “the rule,” which he declined to' do under the circumstances, and the witnesses remained in the courtroom and beard all the evidence and proceedings of the trial. Appellant excepted to the refusal of the court to enforce the rule. His bill in no way points out how he. was injured, or could have been injured, by the court’s refusal to enforce the rule. Nor does the whole record make any such disclosure. In fact, the record makes it clear and certain that he was in no way injured. Powell v. State, 50 Tex. Cr. R. 596, 99 S. W. 1005; Collins v. State, 178 S. W. 351.

In the recent case of Hahn v. State, 73 Tex. Cr. R. 414, 165 S. W. 218, this court reviewed the authorities, the statutes, and decisions of this court on this question of enforcing “the rule,” and in a unanimous opinion held:

“Every text-book writer whom we have examined — and we Have examined a large number— without any exception, lays down in substance this rule which we quote from 38 Cyc. 1369: ‘The separate examination of witnesses at the trial is a matter within the discretion of the court which may order witnesses to be separated and examined each out of the hearing of the others. * * * The discretion of the court will not be reviewed on appeal unless there is a manifest abuse thereof.’ We also cite as holding substantially, if not precisely, the same thing, 12 Cyc. 546, 14 Ency. of Ev. 587, 1 dreenl. Ev. § 432, 1 Thomp. on Trials, § 275, Underhill’s Orim. Ev. § 225, 1 Whart. Crim. Ev. § 446, and every other text-book writer on the subject. Mr. Wigmore, cited and quoted by appellant on the subject, in effect, says the same thing. He contends, however, that it is the right of an accused and the courts have no discretion, but he concedes that only a few courts so hold. Every decision of this court _ and of our Supreme Court when it had criminal jurisdiction is to the same effect as the textbooks cited above. Buckler in his Criminal Digest (volume 2, p. 1750) says: ‘Whether or not witnesses will be placed under the rule rests in the discretion of the trial court, which will not be revised on appeal, in the absence of a showing of abuse and injury to the accused’— citing 15 decisions of this court from the third to the thirtieth Reports. And on page 1752 he says: ‘The admissibility of witnesses who have violated “the rule,” or who have not been placed under the rule, is within the sound discretion of the court, and such discretion will be presumed to have been correctly exercised until the contrary appears’ — citing a large number of the decisions of this and our Supreme Court. To precisely the same effect is Judge White, in his Ann. C. C. P. § 767, citing many cases.
“But in addition to this, let us go to our own statute and see what it says. In examining trials before magistrates, our statute (article 296, C. C. P.) says: ‘The magistrate shall, if requested by the accused or his counsel, or by the person prosecuting, have all the witnesses placed in charge of an officer, except the witness who is testifying, so that the testimony given by any one witness shall not be heard by any of the others.’ Observe the language, the magistrate shall — not may. Then go to the other articles of our Procedure on the same subject, we quote all of them:
“ ‘Art. 719. At the request of either party, the witnesses on both sides may be sworn and placed in the custody of an officer and removed out of the courtroom to some place where they cannot hear the testimony as delivered by any other witness in the cause. This is termed placing witnesses under rule.
“ ‘Art. 726. When witnesses are placed under rule, those summoned for the prosecution may bo kept separate from those summoned for the defense, or they may all be kept together, as the court shall direct.
“ ‘Art. 721. The party requesting the witnesses to be placed under rule may designate such as lie desires placed under rule, and those not designated will be exempt from the rule, or the party may have all the witnesses in the case placed under rule.
“ ‘Art. 722. Witnesses under rule shall bo attended by an officer, and all their reasonable wants provided for, unless the court, in its discretion, directs that they be allowed to go at large; but in no case where, the witnesses are under rule shall they be allowed to hear the testimony in the case, or any part thereof.
“ ‘Art. 723. Witnesses, when placed under rule, shall be instructed by the court that they are not to converse with each other or with any other person about the case, except by permission of the court, and that they are not to read any report of or comment upon the testimony in the case while under rulo; and the officer who attends the witnesses shall report to the court at once any violation of its instructions; and the party violating the same shall be punished for contempt of court.’ Observe the language in those articles: (719) At the request of either party the witnesses on both sides may be sworn and placed in the custody of an officer, etc. (Article 721) The party requesting the witnesses to bo placed under rule may designate such as he desires placed under rule and those not designated will be exempt from the rule.
“It is a general rule, held so by many of the decisions of this court, that all rules of procedure are directory and not mandatory, unless the language and context show that the Legislature intended that they should be mandatory. Bizzell v. State, 72 Tex. Cr. R. 442, 162 S. W. 861, and cases and text-books there cited and quoted. Article 58, C. C. P., is: ‘All words and phrases used in this Code are to be taken and understood in their usual acceptation in common language, except where their meaning is particularly defined by law.’ To the same effect is article 16, P. C. Taking the above statutory enactments, we think it certain that the Legislature intended precisely what they said when they said at examining trials the magistrate shall enforce the rule. But in trials before the district court they confide a discretion to the trial judge and provide that he may enforce the rule and not that ho is peremptorily required — shall do so.”

Since this opinion Mr. Branch has published his valuable Ann. P. C. In volume 1, § 344, he lays down the law in full accord with the authorities cited in the Hahn Case, and cites in point 2 cases of the Supreme Court when it had criminal jurisdiction and 31 of this court down to and including Collins v. State, 178 S. W. 351. This court, through Presiding Judge White, in Cook v. State, 30 Tex. App. 612, 18 S. W. 412, held: “The rule is provided merely to prevent the testimony of one witness from influencing the testimony of another.” This court, through Judge Hurt, in Davis v. State, 28 Tex. App. 560, 13 S. W. 994, held: “To reverse in the- absence of probable injury would be contrary to principle.”

In this case the testimony of no witness was influenced, or could have been, by the testimony of another. The object of the enforcement 'of “the rule” was therefore completely had in this case. Not only was there an absence of probable injury to appellant, but it 'affirmatively appears that no injury was done him. Therefore to reverse this cause “is contrary to principle.”

The decision of Judge Morrow herein is in the face of the statute on “the rule” quoted' above, and all .the decisions of this court heretofore rendered on the subject. He goes back to the common law, which our statute and decisions completely abrogate. If his decision is to be enforced, then all discretion is taken away from the trial courts, where it has universally heretofore been held to be, both by our statutes and decisions, and they must peremptorily enforce “the rule” under any and all circumstances, even though no injury has resulted, or -is possible, to an accused. I believe that is not the law, and has never been, and should not be. Statutes of procedure — and the enforcement of “the rule” is unquéstionably one of these-yare enacted to be followed for the purpose of arriving at and establishing the truth on a trial, and where the truth is unquestionably established by uncontradicted and unimpeached testimony, even though some rule may not be followed, that is all that was ever intended or expected. Murray v. State, 21 Tex. App. 466, 1 S. W. 522; Bizzell v. State, 72 Tex. Cr. R. 445, 162 S. W. 861, and cases therein cited.

In my opinion, this case should be affirmed, and not reversed. I respectfully dissent.
      <S^3Por other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, J.

text:
    FURR v. STATE.
    (No. 4423.)
    (Court of Criminal Appeals of Texas.
    March 28, 1917.
    Rehearing Denied April 18, 1917.)
    1. Seduction <©=5G(1) — Instruction — Definition.
    In a prosecution for abandonment after seduction and marriage, the charge that seduction, as used in Pen. Code 1911, art. 1450, denouncing the offense, meant to lead an unmarried female under 25 years of age away from the path of virtuo, and that the offense is not complete until the female has been seduced, that is, corrupted, deceived, drawn aside from the path of virtue, which she was pursuing, was correct.
    [Ed. Note. — Por other cases, see Seduction, Cent. Dig. § 89.
    Por other definitions, see Words and Phrases, First and Second Series, Seduce; Seduction.]
    2: Husband and Wipe <@=302 — Abandonment op AVife after' Seduction and Mar-biage — Commencement op Prosecution— Statute.
    Filing of a complaint for seduction before a justice of the peace, and issuance of a warrant for defendant’s arrest thereunder, if defendant was informed or had knowledge thereof prior to his marriage to the prosecuting witness, constituted commencement of a prosecution against him for seduction within Pen. Code 1911, art. 1450.
    [Ed. Note. — Por other cases, see Husband and AVife, Cent. Dig. § 1100.]
    3. Criminal Law @=1091(14) — Appeal — Bills op Exceptions.
    Defendant’s objections to the court’s charge should be preserved by separate bills to each objection to any paragraph, and not by being grouped all together in one paper.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2823, 2824.]
    4. Husband and Wife <§=3313 — Abandonment of AA7ife after Seduction and Marriage — Evidence—Corroboration of Pros-eo utrix — Plight.
    Defendant’s flight, when a prosecution for seduction was instituted against him, corroborated prosecutrix in his prosecution for abandonment after seduction and' marriage as to his promise to marry her as the inducing cause of their relations.
    LEd. Note. — For other cases, see Husband and Wife, Cent. Dig. § 1110.]'
    5. Husband and Wife @=313 — Abandonment of AVife after1 Seduction and Marriage — Evidence—Corroboration of Pros-ecutrix-Marriage.
    In a prosecution for abandonment after seduction and marriage, the marriage itself was corroboration of prosecutrix’s testimony as to defendant’s promise to marry her as the inducing cause of their relations.
    [Ed. Note. — Per other cases, see Husband and Wife, Cent. Dig. § 1110.]
    6. Husband and Wife <@=318 — Witnesses <@=61 (2) — Evidence — Abandonment after Seduction and Marriage — Corroboration of Prosecutrix — Competency op Wife.
    Under Pen. Code 1911, art.~1450, denouncing the offense of abandonment after seduction and marriage, the wife or female is competent to testify against defendant just as any other witness could, and it is unnecessary to corroborate her at all, as is required by the statute on the offense of seduction; the two offenses being separate and distinct.
    [Ed. Note. — Por other cases, see Husband and AVife, Cent. Dig. § 1110; AVitnesses, Cent. Dig. § 163.]
    7. Criminal Daw <@=829(12) — Triai^-In-structions — Abandonment after Seduction and Marriage.
    In a prosecution for abandonment after seduction and marriage, the court was not in error in failing to charge separately that it was necessary to corroborate prosecutrix as to the promise of marriage.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. § 2011.]
    8. Criminal Law @=1038(1) — Appeai.—Res-ervation op Grounds op Review — Objection to Charge.
    Under Code Or. Proc. 1911, art. 735, amended by Acts 33d Leg. c. 138 (Amman's Ann. Code Cr. Proc: 1916, art. 735), requiring the trial judge to submit his charge to defendant or his attorney, where the court so submitted the charge, and defendant made no objection because of the omission of the expression “beyond a reasonable doubt” in a paragraph submitting the case, defendant could not object on appeal.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. § 2646.]
    9. Criminal Law <@=823(15) — Trial — Instruction.
    Though the court inadvertently omitted the expression “beyond a reasonable doubt” from a paragraph of his charge submitting the case, where, in another paragraph, he charged the reasonable doubt, an,d applied it to the whole case, that was sufficient.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1992-1994, 3158.]
    10. Witnesses <@=361 (1) — Impeachment-General Reputation por Truth and A’e-racity.
    I11 a prosecution for abandonment after seduction and marriage, where defendant, on cross-examination of prosecutrix, sought to impeach her, and, by his examination, to show that she was testifying falsely from an improper motive, and that her testimony in some particulars was recently manufactured, and followed up such attacks by introducing and having several witnesses testify in direct impeachment of her testimony as to her conduct in particular instances, the state was entitled to prove that prosecutrix’s general reputation for truth and veracity was good.
    [Ed. Note. — For other cases, see Witnesses. Cent. Dig. §§ 1167, 1171-1175.]
    11. Criminal Law <@=721½(2) — Trial—Argument op Counse]>-Comhent on Failure to Call AYitness.
    When accused fails to introduce an available witness who would testify in Ms favor, it is a legitímate deduction against him, and can be argued against him before the jury.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. § 1673.]
    12. Criminal Law <⅜=>722(2) — Trial — Argument of Counsel.
    In a prosecution for abandonment after seduction and marriage, the district attorney’s remark in argument that defendant stole the virtue and destroyed the happiness of prosecutrix was legitimate.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. § 1674.]
    13. Criminal Law ⅞=^724(1) — Trial—Argument of Counsel.
    In such prosecution, it was improper for the district attorney to call the defendant an infernal scoundrel.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. § 1679.]
    14. Criminal Law <S^>730(15) — Trial—Argument of Counsel.
    In such prosecution, where the court properly told the jury not to consider the remark, and withdraw it from their consideration, the error was harmless.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. § 1693.]
    Appeal from District Court, Wilson County; P. G. Chambliss, Judge.
    Sam Purr was convicted of crime, and lie ■appeals.
    Affirmed.
    J. E.' Canfield, of Ploresville, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of abandonment after seduction and marriage, and Ms punishment assessed at three years in the penitentiary.

At the time of the alleged seduction appellant was just past 21 years of age, and the prosecutrix, his wife, then an unmarried woman, was about 9 months older than he. The first act of intercourse between them', as both testified, was about July 23, 1916. She testified, and was corroborated by him and other witnesses too, in effect, that he practically alone waited on her for about 9 months continuously and often just prior to the time of said act, and that he took her back and forth to church and the various social functions in the neighborhood during all this time. He swore:

“The way I came to. going with her is, she acted as she wanted to be a sweetheart to me, and of course I accepted it; she asked me if I would be her sweetheart, and I told her, Wes.’ ”

She swore, and so did1 he, that the first time he had sexual intercourse with her was at her home when she was alone there, the balance of her family being away attending a baptism, and he knew she was there alone; that she had no engagement with him to come there on that occasion, but he learned at the baptism that she was not there, and he went to her home and thus found her alone; that after he reached her home on that occasion he stayed there several hours ; ; that they both sat on the bed, and that he persuaded her for a good while, about a half an hour, to have intercourse with him before she submitted to him. He himself testified that he sat on the bed with her 10, 15, or 20 minutes before she consented to the act, and that he asked her two or three times, might have asked her more — he never counted them —before she yielded to him. She swore positively that the reason she submitted to his embraces was on a promise by him to her to marry her, and that that was the sole cause of her submitting to him; that she would not have submitted to his embraces under any other circumstances; that he promised her right then and there before the act that he would marry her before she ever submitted to his desire, and that she accepted at the time his proposal to marry her. 1-Ie denied that he promised to marry her. She swore, however, that during all this time he was begging her to submit to him, he was not caressing nor kissing her, and his arms were not around her, but by his side. On cross-vexamination she said that after the first act they had intercourse two or three times later; that she did not remember his exact words when he promised to marry her, but he told her if she would “come across” he would marry her.

The result of this sexual intercourse was that she became pregnant by him, and at the time of the trial, on January 1, 1917, she was then about five months “in a family way.” She was corroborated in this by the testimony of other witnesses. He also learned of it, doubtless through her, and he thereupon fled. On October 18, 1916, she filed a sworn complaint against him. before the justice of the peace of the precinct where they lived, and charged him therein with her seduction. A warrant was at once issued by the justice of the peace for his arrest and placed in the proper officers’ hands. They sought for him, not only in that county, but in others, trying to arrest him under the warrant, but he succeeded in avoiding them. On October 25th he sent word to her by one of her cousins that he would marry her, and on that date he secured from the county clerk a proper license for their marriage, and was then and there married to her. 1-Ie and she both testified that she offered and wanted to live with him' as his wife and to make him a good and true wife; that he immediately abandoned her and refused to live with her or to have anything further to do with her; that his abandonment of her and refusal to live with her was without any fault on her part. She swore positively that no man other than appellant at any time had ever had sexual intercourse with her.

The state proved by Mr. Andrews, a disinterested witness, that when appellant was preparing to flee the country, or was then fleeing, he came to Ms field where he was hoeing and, without that witness asking him anything about it, appellant told him that he had seduced the prosecutrix, and that he would either have to marry her or leave the country; that he had heard she was “in a family way,” and that was the reason he would have to leave the country or marry her; that he asked him if he knew anything about what the law was, and the witness told him he did not. The witness said:

“When I asked him if he was guilty, he said he guessed he was; he had seduced her all right.”

The witness said:

“He never went into any discussion of promising to marry her; he never discussed that at all.”

Appellant did not deny the testimony of this witness.

After all the evidence was in, the court turned over to appellant and his attorney the charge which he had prepared. Appellant thereupon objected to different paragraphs of it, and requested a number of special charges. We cannot tell what the court’s charge was when thus turned over to appellant and his attorney. It is certain, however, judging by the exceptions and the charge as now found in the record, that the court must have made changes therein, and he gave one of appellant’s special charges to meet one of his objections. With this special charge given, the court’s charge now in the record is a full, clear, and apt charge, covering every feature of the ease which was either necessary or proper to be embraced in the charge. By it he told the jury correctly the offense the indictment charged against appellant, and that he pleaded not guilty thereto. In one paragraph he quoted substantially, if not literally, the statute (article 1450, 1\ C.), prescribing the offense charged.

In another paragraph he instructed the jury:

“Xou are instructed that ‘seduction,’ as used in the statute, means to lead an unmarried female under 25 years of age away from the path of virtue; to entice or persuade her by means of a promise of marriage to surrender her chastity, and have carnal intercourse with the man making the promise. The promise of marriage by the man, and the yielding of her virtue in, consideration of that promise, constitute the gist of the offense. The offense is not complete until the female has been seduced, that is, corrupted, deceived, drawn aside from the path of virtue, which she was pursuing.”

This charge has uniformly and in a large number of cases been approved as correct. Hinman v. State, 59 Tex. Cr. R. 29, 127 S. W. 221; Browning v. State, 64 Tex. Cr. R. 148, 142 S. W. 1; Bost v. State, 64 Tex. Cr. R. 475, 144 S. W. 589; Knight v. State, 64 Tex. Cr. R. 541, 144 S. W. 967; Bush v. State, 71 Tex. Cr. R. 14, 157 S. W. 944, and other cases; 2 Branch’s Ann. P. O. p. 1461. It is also substantially in compliance with what is held in the case of Putnam v. State, 29 Tex. App. 454, 16 S. W. 97, 25 Am. St. Rep. 738, and Spenrath v. State, 48 S. W. 193, and subsequent cases.

In another paragraph he instructed the jury that the filing of the complaint for seduction before a justice of the peace and the issuance of a warrant for arrest thereunder, if appellant was informed or had knowledge thereof prior to his marriage to the prosecuting witness, would constitute a commencement of a prosecution against him for seduction. This was specifically held to be the law by this court in Baskins v. State, 75 Tex. Cr. R. 537, 171 S. W. 723.

In another paragraph he told the jury that a woman who had theretofore had carnal knowledge of or sexual intercourse with a man was not a subject of seduction, and if they believed from the evidence that the prosecuting witness, his wife, was or had been guilty of carnal knowledge of or sexual intercourse with any man or men prior to the time he promised to marry her, if he did, and his sexual intercourse with her was by virtue of such promise, if any, to find him not guilty.

Then, in another paragraph, he told the jury that his said wife was an accomplice, and then gave literally the charge on that subject and the necessity of corroborating her, as expressly laid down by this court in Campbell v. State, 57 Tex. Cr. R. 302, 123 S. W. 583, which- charge has repeatedly been held correct by many cases subsequent thereto. It is unnecessary to collate them.

In another paragraph the court submitted the case to the jury for a finding, and required them to believe from the evidence every essential which was made necessary or proper by the statute for them to believe before they could find him guilty, and if they believed all these facts, then to find him guilty and assess his punishment as prescribed by the statute.

In another paragraph he charged as follows:

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

We have considered all of appellant’s objections to the court’s charge, notwithstanding they are all together in one paper and not, as is necessary, preserved by separate bills to each objection to any paragraph only; and, in our opinion, none of them present any error. We have also considered all of his special charges, and other than the one which the court did give none of them should have been given. It is unnecessary to state these objections and special charges separately. We will discuss some of the questions attempted to be raised thereby.

Appellant contends that the evidence was wholly insufficient to show seduction, but that it shows only a bargain and sale, the surrender of her person to appellant for a bald promise of marriage. No doubt this contention .was urged before the jury with all the force of appellant’s able attorney. The testimony as a whole clearly authorized the jury to believe and find, as it did, that the evidence was sufficient to show seduction, and'was not a mere arrangement of bargain and sale. Of course, the facts of each case must govern in this particular, and no two cases would probably be exactly alike, but there are many decisions where the facts were no stronger or more pertinent to show seduction than the facts in this case are, and this court has all the time sustained such verdicts. See cases collated in 1 Vernon’s Ann. Orim. Stats, p. 936. There are many other cases also.

Appellant also contends that his wife, prosecutrix, was not corroborated as to his promise to marry her as the inducing cause for her to yield her person to him. His contention cannot be sustained. Even if she had to be corroborated at all, the evidence greatly preponderated against him on this point. His flight of itself would be corroborative evidence, but, in addition to this, at the time of his flight, he specifically stated to Mr. Andrews that he had seduced the prosecutrix, and when Mr. Andrews asked him if he was guilty, he said he guessed he was; he had seduced her all right.. In addition, after the prosecution was begun against him for seduction, and to avoid conviction for seduction, he married the prosecutrix. This of itself has been held by this court as a virtual admission of his promise to marry prosecutrix; at least a circumstance tending strongly to so corroborate the prosecutrix. James v. State, 74 Tex. Cr. R. 141, 167 S. W. 727.

The statute prescribing the offense of abandonment after seduction and marriage (article 1450, P. C.) expressly enacts that the said marriage of the prosecutrix with the accused'in this offense—

•‘shall be no bar to the qualifications of said female to testify against the defendant; and the female so seduced and subsequently married and abandoned, as herein provided, shall be a competent witness against said defendant.”

This writer thinks it clear from this statute that the Legislature intended that the wife, female, should be competent to testify against the appellant in this offense just as any other witness could, and that it was unnecessary in this offense to corroborate her at all such as is required by the statute on the offense of seduction. This offense is a separate and distinct offense from seduction. This court has held this under a similar statute on the offense of pandering, and they are applicable hereto. Jones v. State, 72 Tex. Cr. R. 496, 162 S. W. 1142; Smith v. State, 73 Tex. Cr. R. 129, 164 S. W. 825.

Appellant further contends that the court should have charged separately that it was necessary to corroborate the prosecutrix as to the promise of marriage. This was clearly embraced in the charge of the court submitting the case to the jury for a finding, and was required to.be believed by the jury as well as all the other requisites to show seduction before they could convict. This question has also repeatedly and specifically been held against appellant by this court. Slaughter v. State, 76 Tex. Cr. R. 162 et seq., 174 S. W. 580, where the authorities are cited and discussed. It is unnecessary to again collate them or discuss the question.

Appellant also complains that in that paragraph of the court’s charge submitting the case he omitted to tell the jury therein that they must believe from the evidence beyond a reasonable doubt, etc., omitting therein “beyond a reasonable doubt.” Doubtless the court inadvertently omitted this, but, as stated above, he submitted his charge to appellant as required by the statute, and he made no objection whatever to the court’s charge at the time because of that omission, and, so far as the record shows, did not at the time in any way call the court’s attention thereto. The very object of the Legislature and the law in amending article 735 and others, C. C. P., by the act of April 5, 1913, p. 278 (Vernon’s Ann. Code Cr. Proc. 1916, art. 735), in requiring the judge to submit his charge to the appellant or his attorney, was that such matters should be then ami there called to the attention of the court, and unless it is then called to his attention, it is too late later to make such objections. Moreover, as shown above, the court in his charge, in another paragraph, charged the reasonable doubt and applied it to the whole case. This court in a number of decisions has held expressly that this was all that was essential. Conger v. State, 63 Tex. Cr. R. 336, 140 S. W. 1112, and cases there cited; Wysong v. State, 66 Tex. Cr. R. 205, 146 S. W. 941, and cases there cited; Hutto v. State, 7 Tex. App. 48; McCall v. State, 14 Tex. App. 363; Ashlock v. State, 16 Tex. App. 23; McCullough v. State, 23 Tex. App. 636, 5 S. W. 175; Powell v. State, 28 Tex. App. 398; 13 S. W. 599; McCay v. State, 32 Tex. Cr. R. 238, 22 S. W. 974; Cockerell v. State, 32 Tex. Cr. R. 593, 25 S. W. 421, and cases there cited; Little v. State, 39 Tex. Cr. R. 661, 47 S. W. 984.

. In cross-examination of prosecutrix, his wife, appellant sought to impeach her, and by his examination of her in substance and effect attempted to show that she was testifying falsely from an improper motive, and that her testimony in some particulars was recently manufactured. Then, in introducing his evidence he followed up his said attacks on her by introducing and having several witnesses testify, and in one instance himself testifying, in direct impeachment of her. Some of these will be mentioned.

He asked her, fixing the time as nearly 2 years before, and the place, if she was not in a buggy with Orin Little and stopped in a certain pasture, when one of the Higgins boys whistled, and- she said to Little: “That is the Higgins boy. watching us.” She. denied this. He introduced the Higgins boy, who swore that this occurred.

Again, fixing the time and place, he ashed her if she was not out in the lane on a certain road in the night in her nightclothes when one Garner came along, and she asked if that was Sam, the clear implication being that she was out at this place at this time to meet Sam for improper purposes. She denied all this. He thereupon in impeachment of her had a witness to testify that this did occur.

Again, he asked her, fixing the time and place, if she was not out one night in a buggy with said Little when at a certain location the buggy was stopped, she sitting on the seat and Little down on his knees in front of her having sexual intercourse with her, when she was caught in this attitude by another party. She denied all this. He then put a witness on the stand, who testified in effect that he saw her and Little on said occasion in said compromising attitude.

Again, he asked her if on another occasion, fixing the time and place at her own house, if she was not lying on the bed with a certain man when a certain other party came up and saw them, and that she and the other man then jumped up. She denied all this. He introduced a witness, who testified that he saw her in this attitude with said man at the time.

Other instances could also be mentioned.

Under such circumstances it has always been held by this court in a large number- of cases that the party whose witness is thus impeached can prove such witness’ general reputation for truth and veracity to be good. In this instance, therefore, the court did not err in permitting the state to prove by some 11 witnesses that they knew his wife, the prosecutrix’s, reputation for truth and veracity, and that it was good.

Appellant has a very meager bill, stating that on the trial, over his objections, the state was permitted to introduce in evidence his motion for a continuance. His objections were that it was irrelevant and immaterial, throwing no light on any issue in the case, and was calculated to inflame and prejudice the minds of the jury against him. This is the substance in full of his bill. It in no way discloses what his motion for a continuance contained, and from it nothing of its contents is shown. This of itself is sufficient to show that this bill presents no error. The motion for a continuance nowhere appears in the record except in the statement of facts. If we could look to this and the statement of facts on the subject, this state of fact would appear: When the case was called for trial, appellant made a motion for a continuance on account of the absence of his witness said Orin Little, and in it he swore that he expected to prove by him that for several months during the spring and summer of 1915, and long prior to appellant’s having sexual intercourse with the prosecuting witness, the said Little at frequent times during said months had sexual intercourse with her. While the case was being tried, the state proved that said witness Little was in attendance upon the court and in the witness room. Appellant did not introduce him and have him testify as he claimed he would. All the authorities are to the effect that when the accused fails to introduce an available witness who would testify in his favor, it is a legitimate deduction against him and can be argued against him before the jury. 5 A. & E. Enc. of Law and Prac. p. 333; 2 Standard Enc. of Proc. p. 773, where a large number of cases from the United States courts, Alabama, Georgia, Iowa, Kansas, Kentucky, Massachusetts, Michigan, Minnesota, Missouri, North Carolina, Oregon, Texas, and Wisconsin, holding this, are cited; also Graves v. United States, 150 U. S. 118, 14 Sup. -Ct. 40, 37 L. Ed. 1021. This has many times been held by this court. White’s Ann. C. C. P., § 1052, subd. 8, where a considerable number of cases are collated; 1 Branch’s Ann. P. C. p. 208. It is unnecessary to here collate all of these cases. So that, if we could consider this bill, it shows no error.

Appellant has a bill complaining that the district attorney in the closing argument pointed his finger.at appellant and said:

“You infernal scoundrel, you stole the virtue and destroyed the happiness of this girl” .

—to which he objected. The court qualified the bill by stating that the court instructed the jury at once not to consider the remarks excepted to, and withdrew said remarks from their consideration. The latter part of the remark, that he stole the virtue and destroyed the happiness of this girl, was legitimate argument, based on the facts in evidence. Of course, it was improper for the district attorney to call appellant an infernal scoundrel, but as the court promptly told the jury not to consider said remarks and withdrew it from their consideration, this would not present error. Appellant at the time did not attach sufficient importance to it to even ask a written charge on the subject. Branch’s Crim. Law, § 62, p. 32, and cases cited; Mooney v. State, 76 Tex. Cr. R. 549 et seq., 176 S. W. 52, and cases cited. In Jackson v. State, 56 Tex. Cr. R. 28, 117 S. W. 990, where the state’s counsel 'in argument called the defendant, “This brute, this missing link in the chain of beings,” and. the court instructed the jury not to consider it, this court held this presented no reversible error. A great many other cases could be cited to the same effect.

Nothing else is raised requiring discussion.

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

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


text:
    WELCH v. STATE.
    (No. 4432.)
    (Court of Criminal Appeals of Texas.
    April 18, 1917.)
    Malicious Mischief i@=^9 — Prosecution — Evidence — Sufficiency.
    In a prosecution under Acts 33d Leg. c. 109, § 3, declaring that whoever purposely and maliciously shall change the gears of a standing motor vehicle to a position other than that in which it was left by the owner shall upon conviction be imprisoned in the county jail for not less than six months, nor more than one year, evidence held, insufficient to sustain a conviction.
    [Ed. Note. — For other cases, see Malicious Mischief, Cent. Dig. § 15.)
    Appeal from Bexar .County Court; Nelson Lytle, Judge.
    Leonard Welch was convicted of crime, and he appeals.
    Reversed and remanded.
    _ L. W. Greenly and A. L. Hatchett, both of San Antonio, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was prosecuted under section 3 of the act of April 2, 1913, p. 187, which, as to the alleged offense, prescribes: Whoever purposely and maliciously shall change the gears of a standing motor véhicle to a position other than that in which it was left by the owner shall upon conviction be imprisoned in the county jail for not less than six months nor more than one year. Appellant’s punishment was assessed at the lowest prescribed.

Only two witnesses testified, the owner and appellant. The effect of their testimony is that the owner employed appellant to fix his automobile. When he turned it over to him for that purpose it was in a certain yard, and the owner gave him no authority to take it out of that yard. At the time he turned it over to him it was not in gear. Appellant fixed the car as he had been employed to do. After he had completed the repairs he took it out to see if it was in good working condition. He ran it some 12 blocks to a house he said to get water to put into the radiator. When he reached that house, the parties there asked him to take them for a ride, which he did. While going down a grade, he discovered the brakes would not work, and he was unable to control the car. One of the casings on the front wheel came” off, and the car turned partly over and skidded around so that it faced back towards the way it was running before it skidded. The car was considerably injured. The owner knew nothing about his using the car or injuring it- until appellant told him, and ‘when he told him of the accident appellant said he also told him he would repair the car or pay the damages, and he thought everything was satisfactory until he was arrested. Appellant admitted that -the car was not in gear when he started to work on it, and of course in order to run it he had to put it in gear and change it from what it 1 was when it was left in his charge by the owner. The evidence, we think, was not sufficient to show that appellant purposely and maliciously, in the sense intended and prescribed by said section of the law, changed the gear of said standing motor to a position other than that in which it was left by the owner when placed in his charge.

Section 1 of said act of 1913, as amended by the act of March 22, 1915, p. 160, makes it an offense, with the same penalty as prescribed hi section 3 above noted, for any one to purposely take, drive, or operate upon the public road, highway, or other public place any motor vehicle without the consent of the owner if the value thereof is $35 or more, and, if of less value, prescribes a lesser penalty. While we do not pass upon the question -nor -in any way hold, because the question is not before us, that appellant may have violated said section 1, we call attention to said first section to emphasize the fact that the evidence was insufficient to show that appellant was guilty under said section 3.

The judgment is reversed, and the cause remanded.


text:
    STEPHENS v. STATE.
    (No. 4356.)
    (Court of Criminal Appeals of Texas.
    April 4, 1917.
    Dissenting Opinion April 23, 1917.)
    Ftsh <⅜^13(1) — Unlawful FisniNG — Statute — “Pool”—“Water Course.”
    . One who took fish without the consent of the owner from a hole in a creek which sometimes ran in wet seasons and after rains, but which stood in holes and ponds most of the time, is not guilty of unlawfully taking fish from a pool contrary to Vernon’s Ann. Pen. Code 1916, art. 870, since a pool is a small lake of standing water, while a water course consists of bed, banks, and water, but the water need not flow continually (citing Words and Phrases, Water Course).
    [Eid. Note. — For other cases, see Fish, Cent. Dig. § 22.
    For other definitions, see Words and Phrases, First and 'Second Series, Pool.)
    Prendergast, J., dissenting.
    Appeal from Throckmorton County Court; A. H. King, Judge.
    A. Stephens was convicted of unlawfully taking fish, and he appeals.
    Reversed and remanded.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was charged and convicted with unlawfully taking fish.

The charging part of the information is as follows:

“Did then and there unlawfully take, catch, ensnare, and entrap fish by means of nets and seines in a pond beyonding to the Reynolds Cattle Company, a corporation duly incorporated under the laws of the state of Texas, without the consent of the said owner of said pond.”

And by second count it charged as follows :

“Did then and there unlawfully catch, take, ensnare, and entrap fish by means of nets and seines in a pool belonging to the Reynolds Cattle Company, ⅜ * ⅜ without the consent of the owner of such pool.”

Article 810, Vernon’s P. C., forbids any person to take, catch, ensnare, or entrap any fish by means of nets or seines or by muddying, ditching, or draining any lake, pool, or pond in any county of this state without the consent of the owner. It was proved on the trial:

That the appellant took fish by means of a seine without the consent of the owner, and that the fish were taken from the “hole of water in the creek. Paint creek has water in it in holes and ponds most of the time, but it sometimes runs in wet seasons and after rains. Paint creek does not run all the time. It runs in wet seasons. It stands in holes and ponds most of the time.”

There is another statute with reference to fishing ’in streams. It will be noted that the evidence shows that this is a creek which runs at times, and fails to show whether it was running at the time of the alleged offense. A “pool” is defined in Bouvier’s' Law Dictionary, p. 2631, as a small lake of standing water. A “pond” is defined in the same book as a body of stagnant water. A “pond,” as defined by Webster, is a confined or stagnant body of fresh water. “A water course consists of bed, banks, and water. Vet the water need not flow continually. There are many water courses which are sometimes dry. To maintain the right to a water course it must be made to appear that the water usually flows in a certain direction, and by a regular channel, with banks and sides. Chamberlain v. Hemingway, 63 Conn. 1, 27 Atl. 239, 240, 22 L. R. A. 45, 38 Am. St. Rep. 330; Porter v. Armstrong, 129 N. C. 101, 39 S. E. 799, 801; Hill v. Cincinnati, W. & M. R. Co., 109 Ind. 511, 10 N. E. 410; Weis v. City of Madison, 75 Ind. 241, 253, 39 Am. Rep. 135; Tampa Waterworks Co. v. Cline, 37 Fla. 586, 20 South. 780, 784, 33 L. R. A. 376, 53 Am. St. Rep. 262; Simmons v. Winters, 21 Or. 35, 27 Pac. 7, 8, 28 Am. St. Rep. 727; Eulrich v. Richter, 41 Wis. 318, 320; Id., 37 Wis. 226, 229; Barkley v. Wilcox, 86 N. Y. 140, 40 Am. Rep. 519; Hinkle v. Avery, 88 Iowa, 47, 55 N. W. 77, 78, 45 Am. St. Rep. 224; Case v. Hoffman, 84 Wis. 438, 445, 54 N. W. 793, 20 L. R. A. 40, 36 Am. St. Rep. 937: Shields v. Arndt, 4 N. J. Eq. (3 H. W. Green) 234, 235; Jeffers v. Jeffers, 107 N. Y. 650, 14 N. E. 316.” Words and Phrases' (O. S.) p. 7411. In our opinion, the evidence in this case shows that the fish were taken out of a part of a stream or water course, and not out of a pool or pond within the statute.

•The judgment of the lower court is therefore reversed, and the cause remanded.

PRENDERGAST, J.

(dissenting). Webster defines a “pool” to be:

“A small and rather deep collection of (usually) fresh water, as one supplied by a spring, or occurring in tlie course of a stream.”

The Century Dictionary defines a “pool” to be:

“A part of a small stream where the bed suddenly. deepens and broadens, forming a relatively still, deep and wide stretch of water.”

The statute (article 780, P. C.) is:

“Any person who shall take, catch * * ⅜ any fish by means of seines ⅞ * * in any lake, pool, or pond * * * without the consent of the owner of such lake, pool, or pond, shall be” punished, etc.

There can be no question but that the Legislature meant and intended by “pool” in this statute just exactly the body of water defined by the lexicographers above quoted. In fact, every one in this country knows that a pool means a body of water occurring in a creek or stream, whether the water be running or not. The uncontradicted evidence shows appellant caught fish with a seine out of a hole of water — pool—in Paint creek, without the owner’s consent. This was exactly what the law said should be punished. The law was intended to protect the owner of the fish on his own premises. The evidence does not show the fish were taken out of a stream, or water course, as contradis-tinguished from a pool therein, but out of a pool in a creek.

The judgment should be affirmed, not reversed. I dissent.
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text:
    OWENS v. STATE.
    (No. 4431.)
    (Court of Criminal Appeals of Texas.
    April 18, 1917.)
    Criminal Law <⅜=>1076(1) — .Appeal—Recognizance.
    An appeal from a conviction of unlawfully carrying a' pistol is not perfected by the giving of an appeal bond instead of entering in a recognizance, and must be dismissed; the appellate court acquiring no jurisdiction.
    [Ed. Note. — Eor other cases, see CriminaL Law, Cent. Dig. § 2716.]
    Appeal from Erath County Court; W. E.. Bower, Judge.
    Bob Owens was convicted of unlawfully carrying a pistol, and he appeals.
    Appeal, dismissed.
    E. B. Hendricks, Asst. Atty. Gen., for the-State.
   PRENDERGAST, J.

Appellant was eon--victed of unlawfully carrying a pistol, and-assessed the lowest punishment.

In attempting to appeal he gave an appeal, bond instead of entering into a recognizance. Upon the motion of the Assistant Attorney General the appeal is dismissed because this, court has not acquired jurisdiction. Whit-comb v. State, 190 S. W. 484.

The appeal is dismissed.
      <&=>Kor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes