author: PRENDERGAST, J.

text:
    MULKET v. STATE.
    (No. 4675.)
    (Court of Criminal Appeals of Texas.
    Feb. 6, 1918.)
    1. Animals <&wkey;29 — Stock Laws — Authority OF LEGISLATURE.
    Under Gonst. art. 16, § 23, declaring that the Legislature may pass laws for the regulation of live stock, and the protection of stock raisers in any part of the state, and may exempt from the operation of such laws other sections or counties, and shall have power to pass general and special laws for the inspection of cattle, etc., provided that any local law thus passed shall be submitted to the freeholders of the section to be affected thereby, the Legislature can pass laws for the regulation of live stock affecting any given locality, and making it effective with or without submitting it to a vote.
    2. Constitutional Law &wkey;>62 — Delegation of Legislative Authority — What Constitutes.
    Rev. St. 1911, art. 7312 et seq., creating the live stock sanitary commission, authorizing the commission to establish, maintain, and enforce such quarantine line and sanitary rules as may be necessary, to make and promulgate rules and regulations which shall permit and govern inspection and shipment of cattle from quarantine districts, and declaring that it shall be unlawful to move or allow any cattle or other live stock to be moved from any quarantine district in any manner, method, or condition other than as prescribed _ by the commission, and that notice shall be given by proclamation of the Governor, and Acts 33d Leg. c. 169, § 3 (Vernon’s Saylcs’ Ann. Civ. St. 1914, art. 7314b), forbidding the removal of live stock from a quarantine district without compliance with the rules and regulations of the commission, as proclaimed by the Governor, are not invalid as a delegation of legislative power to an administrative body.
    3. Criminal Law <&wkey;304(17) — Judicial No.tice — Proclamation.
    Under the Tick Eradication and Quarantine Law (Acts 33d Leg. c. 169 [Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 7314-7314e]), the court and jury, will take judicial notice of the rules and regulations of the live stock sanitary commission proclaimed by the Governor, but judicial notice cannot be taken of rules and regulations not so proclaimed.
    4. Criminal Law <&wkey;304(17) — Judicial Notice-Proclamation of Governor.
    As the Governor has no authority to make rules and regulations for the protection of live stock, proof of a violation of a proclamation by the Governor defining a special quarantine area and forbidding the movement of cattle into or from such area, without inspection, etc., will not support a conviction of a violation of the rules and regulations of the live stock sanitary commission proclaimed by the Governor; for, as the proclamation of the Governor did not show that the rules and regulations were adopted by the commission, the court cannot take judicial notice that such rules and regulations were prescribed by the commission.

      Appeal from Concho County Court; James E. Howzer, Judge.
    Abe Mulkey was convicted of violating the quarantine order, by the live stock sanitary commission for the eradication of ticks, and he appeals.
    Reversed and remanded.
    L. J. Wardlaw, of Sonora, for appellant. E. B. Hendricks, ksst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of violating a quarantine order by the live stock sanitary commission for the eradication of ticks. ,

"The complaint and information are very complete. They allege a proper election in said county on September 18, 1915, ordered by the commissioners’ court upon the petition of the necessary qualified voters for the eradication of ticks; that the election was carried and so declared by the commissioners’ court; an order by that court duly made and duly published; that the county judge of said county properly notified the live stock sanitary commission of the result of said election, and that said commission caused to be issued a supplemental proclamation by the Governor proclaiming a quarantine around said county; that tick eradication was properly begun under said proclamation on FeD-ruary 14th; that said commission promulgated and the Governor proclaimed1 the rules and regulations known as order III, and effective February 15, 1917, for the certification, treatment, and handling of live stock into, within, or from a special quarantined area of which said county was a part, said order being as follows:

“It shall be unlawful for any cattle * * * to be moved into, within, or from said area until they have been .inspected and certified to by an inspector of the live stock sanitary commission or the United States Bureau of Animal Industry. Inspectors shall not issue certificates on such live stock moved within or from said area unless they have been dipped— one dipping if free of ticks and two or more dippings with an interval of at least 7 days where they are infected with ticks”

—and that on February 27th appellant did unlawfully move, and cause same to be done, from a point in said Concho county into certain premises in Runnels county which was a part of said area, certain cattle without first having them inspected and certified to by an inspector of said commission or United States Bureau of Animal Industry, showing them to be free from infection, and that said cattle had not been dipped according to said order; the said tick eradication law and said rules and regulations of said live stoeii santitary commission being in full force and effect in said county.

Appellant contends, in substance, that the information charges no offense because it charges the violation of an order prescribed by the live stock sanitary commission, and not an act of the Legislature, and that the Legislature cannot delegate the lawmaking power to said commission in violation of section 1, art. 3, of the Constitution.

Article 16, §23, of the Constitution expressly authorizes the Legislature to pass laws1 for the regulation of live stock and the protection of stock raisers in any part of the state, and that it may exempt from the operhtion of said laws other portions, sections, or counties. That section also provides for submitting any such law to a vote of the people to be affected thereby. Under this provision of the Constitution both the civil courts and this court have held that the Legislature can pass any such law affecting any given locality in the state and make it effective with or without submitting it to a vote. Armstrong v. Traylor, 87 Tex. 598, 30 S. W. 440; Graves v. Rudd, 26 Tex. Civ. App. 554, 65 S. W. 64; Brazeale v. Strength (Tex. Civ. App.) 196 S. W. 249; McGee v. State, 194 S. W. 953; Ex parte Thompkins, 47 Tex. Cr. R. 359, 83 S." W. 379; Roberson v. State, 42 Tex. Cr. R. 597, 63 S. W. 884; and other eases.

The law of this state (article 7312 et seq., R. S.) created our live stock sanitary commission and prescribes its duties and powers. Under that law the said commission was1 — ■ “authorized and empowered to establish, maintain and enforce such quarantine lines and sanitary rules as it may be necessary, * * * quarantine any district, county or part of county, within this state when it shall determine the fact that cattle or other live stock in such district, county or part of county, are affected * * ⅜ to make and promulgate rules and regulations which shall permit and govern the inspection, * ⅜ ⅜ treatment, handling and method and manner of delivery and shipment of cattle and other live stock from a quarantined district, county or part of county into any other district * * * shall give notice of such rules and regulation by proclamation issued by the Governor.” Vernon’s Sayles’ Ann. Civ. St. 1914, art. 7314.

And article 7314a further provides:

“It shall be unlawful to move or allow to move any cattle or other live stock from any quarantined district, county, part of county or premises, to any other district, county part of county or premises, in manner, method or condition other than those prescribed by the live stock sanitary commission and proclaimed by the Governor.”

And article 7314b further provides:

“No live stock shall be moved to or from such _ special quarantined district, pastures or premises in a manner, method or condition other than those prescribed by the live stock sanitary commission.” Section 3, Acts 1913, p. 354.

Section 2 of Acts 1913, p. 354 (section 7314a) is:

“That cattle or other live stock may be moved from a quarantined district, county, or part of county, or from quarantined premises into any other district, county, part of county, or premises, under and in compliance with the rules and regulations of the live stock sanitary commission, as proclaimed by the Governor, but it shall be unlawful to move or allow to move any cattle or live stock from any quarantined district, county, part of county or premises, to any other district, county, part of county or premises, in manner, method or conditions other than those prescribed by the live stock sanitary commission and proclaimed by the Governor.”

In St. Louis S. W. R. R. Go. v. Smith, 20 Tex. Civ. App. 451, 49 S. W. 632, it was said by our Et. Worth Court of Civil Appeals that, where our live stock sanitary commission has declared quarantine lines as to animals so as to prevent communication of disease therefrom, and has prescribed rules and regulations to make such quarantine effective, and the Governor has properly proclaimed them, “such lines and such regulations have all the force of law, and, as such, should be obeyed by every class of our citizenship,” and it was held in that case that, where said commission had quarantined against cattle from Louisiana being shipped into this state, and it had been properly proclaimed by the Governor, that Smith, the plaintiff therein, could not recover from the railroad the value of the cattle shipped by him in violation of that quarantine and proclamation. That case was affirmed by the United States Supreme Court, 181 U. S. 248, 21 Sup. Ct. 603, 45 L. Ed. 847.

In Smith v. State, 74 Tex. Cr. R. 232, 168 S. W. 522, where appellant was convicted for driving his cattle across the quarantine line in violation of the line so established by our said commission, it was held that such establishment and regulation by the commission was not the exercise of a delegation of the power to legislate; that such authority therefor was contained in the law enacted by the Legislature to that effect, citing several decisions.

In 3 C. J. (Corpus Juris) p. 50, it is said:

“The authority of the Legislature to enact laws for the protection of domestic animals, and to prevent the spread of infectious or contagious diseases among them, is everywhere recognized as a valid exercise of the police power of the state. Thus the state may prescribe stock quarantine regulations, and may also require its citizens, at their expense, to disinfect their diseased or infected live stock or infected places.”

In section 148, p. 51, it is said:

“Under the commerce and police powers both the federal and state governments may pass quarantine laws for the purpose of isolating diseased or suspected cattle, and thus preventing their communicating disease to other cattle with which they may otherwise come in contact. These laws usually confer authority to establish and maintain such quarantine as may be necessary upon the state board of agriculture or live stock commission. In the exercise of the authority thus conferred, such board or commission may make all reasonable and necessary rules and regulations for the enforcement of the law.”

In section 147, p. 51, it is said:

“It is within the power of the Legislature to confer upon officers or commissions authority to execute the law and to adopt all needful regulations to that end. Legislation of this character is not a delegation of legislative functions” —citing several authorities.

Again, in section 182, p. 60, it is said that:

“In order to render its quarantine legislation effective of the purpose sought to be attained, the state has power to provide punishment for those who violate the law. To this end violation of sanitary and quarantine regulations, as, for instance, driving or transporting diseased cattle from one state to another, is frequently made a misdemeanor or a penal offense.”

Under these authorities we think the authority given to our live stock sanitary commission to quarantine live stock and to adopt rules and regulations to enforce the same, when properly promulgated by the Governor, is not the exercise of legislative functions by the commission, and that such rules and regulations so properly promulgated are valid, and the violation thereof may be made an offense. This results in holding that the indictment herein was valid in charging an offense.

The decisions holding the pool law void by the majority of this court and of the Supreme Court and relied upon by appellant are inapplicable herein.

It has been correctly held under said Tick Eradication and Quarantine Law that the court and jury had to take judicial knowledge of the Governor’s proclamation proclaiming such quarantine and the rules and regulations adopted by said commission, and that it was not necessary to prove them. McGee v. State, 194 S. W. 953. However, neither this court nor any other court is bound to take judicial notice of any rules and regulations adopted by the said Commission which have not been proclaimed by the Governor. In* fact such rules and regulations, even though adopted by the commission, are without force and effect unless and until the Governor proclaims them by his proclamation.

In this case doubtless the state and the court below relied upon the proclamation of the Governor described in the information. We have examined that orginal proclamation in the office of the secretary of state. It in no way proclaims any rule or regulation which had been adopted by said commission. It simply states that certain counties (naming them), including Concho and Runnels, are hereby declared to be under special quarantine known as the special quarantined area, and in another paragraph that it shall be unlawful for any cattle, etc., to be moved into, within, or from said area until they have been inspected and certified by an inspector of the live stock sanitary commission or the United States Bureau of Animal Industry. In another paragraph that inspectors shall not issue certificates on any of such live stock moved within or from said area unless they have been dipped — one dipping if the stock are free from ticks, and two or more dippings with an interval of at least seven days when they are infected with ticks. This proclamation does not proclaim nor purport to proclaim that any or either of said rules and regulations have been adopted by said commission nor are they proclaimed as such, but on the face of the proclamation the Governor himself, without any regard to the commission or any action by it, states therein what we have shown. The Governor of himself has no power nor authority to adopt any rules and regulations on the subject. The commission must do this. His duty is to proclaim, not what he has done, but what the commission has done, in order to put the rules and regulations of the commission in force.

Under this state of the case the trial judge charged the jury, in effect, that said rules and regulations of said commission were in force and effect in Concho and Runnels counties, making it unlawful for any cattle to be moved into, within, or from Concho to Runnels county until they had been inspected and certified by an inspector of the said commission or the United States Bureau of Animal, Industry. The whole charge of the court was based on the idea that it could and. did take judicial knowledge of said proclamation by the Governor, and that it proclaimed that the said claimed rules and regulations had been adopted by said commission. This was all properly excepted to at the time by the appellant, and presents reversible error.

'If the live stock sanitary commission had itself adopted the said rules and regulations, and the Governor by said proclamation had proclaimed that the said commission had done so in his proclamation, then an altogether different question would have been presented.

For the error in the court’s charge the judgment is reversed, and the cause remanded.
      ©=For other cases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

license: Public Domain

text:
    ANDERSON v. STATE.
    (No. 4919.)
    (Court of Criminal Appeals of Texas.
    March 6, 1918.)
    Bail <&wkey;58 — Bond—Liability of Surety— Form of Bond.
    Under Code Or. Proc. 1911, art. 321, as amended by Acts 26th Leg. c. 74, stating requisites of a bail bond, a bond naming offense of “violating the local option law” created no liability in the surety, since it neither stated that the offense was a felony nor named an offense eo nomine prescribed by law.
    Appeal from District Court, Bowie County; H. F. O’Neal, Judge.
    Action on alleged bail bond by the State against M. D. Anderson. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Sid Crumpton, of Texarkana, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant appeals from a final judgment against him as a surety in a sei. fa. case on what was claimed to be a bail bond. He points out many defects of this bond and conflicts therein which he claims are fatal to prevent any valid judgment thereon against him. It is unnecessary to even state all of these. It is difficult to conceive of more mistakes and conflicts in a bail bond than were made in this one. However, it is only necessary to state one.

The la.w prior to Acts 1899, p. Ill, which amended article 321, C. C: P., prescribed as one of the requisites of a bail bond that it should distinctly state the offense of which the defendant was’ accused, and that it must appear to be an accusation of some offense against the laws of the state. The said article, as it has been since amended by the act of 1899, instead prescribes as one of the requisites that the bond shall state that the defendant is charged with an offense, that is, a felony, if the charge is a felony, but, if a misdemeanor, that it shall state that he is charged with a misdemeanor. In other words the law now is that the bond in this particular will be -sufficient if it states merely that the offense charged is a felony without telling what the offense is. Under this statute eithe/r this must be done, or the specific offense must be stated.

In this bond the offense is stated as “violating the local option law.” There is no such offense eo nomine prescribed by law. This defect renders the bond fatally defective. No valid judgment could he rendered thereon, if -there were no other defects. It is unnecessary to cite the decisions. They are noted under articles 320 and 321, G. O. P.

Reversed and remanded.


author: DAVIDSON, P. J.

text:
    KAHANEK v. STATE.
    (No. 4850.)
    (Court of Criminal Appeals of Texas.
    Feb. 13, 1918.
    Rehearing Denied March 27, 1918.)
    1. Receiving Stolen Goods <&wkey;7(3) — Indictment — Naming Parties from Whom Received.
    In indictments charging the reception of stolen property, it is necessary to name the parties from whom the stolen property was received by defendant, if the names are known, and, if not, the grand jury is justified in alleging that the names of the parties are unknown to it.
    2. Receiving Stolen Goods <&wkey;7(6) — Indictment — Issues and Pbooe — Parties erom Whom Received.
    Where an indictment for receiving stolen goods alleged that defendant received the property from two named persons to convict it was necessary' for the state to meet the allegations with appropriate evidence.
    3. Indictment and Information &wkey;>171 — Allegations — Support by Proof.
    Wherever descriptive averments are made in an indictment, whether necessary or not, the proof must meet them, and all necessary allegations must be met by corresponding evidence.
    4. Receiving Stolen Goods 3 — Reception in Good Faith — Subsequent Concealment.
    If defendant did not know, when he received a buggy from those who had stolen it, that it was dishonestly acquired, he was not guilty of fraudulently receiving the property; but if subsequently he ascertained that the property was stolen, and later concealed it with a fraudulent design, he might have been guilty of fraudulently concealing it.

      Appeal from District Court, Lavaca County; M. Kennon, Judge.
    Joe Kahanek was convicted of receiving stolen property, and he appeals.
    Reversed, and cause remanded.
    Schwartz & Bagby, of Hallettsville, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was charged with receiving stolen property from George Clark and Joe Haffernik, which property was alleged to belong to J. A. Nachlinger.

The theory of the prosecution, as evidenced by the allegation in the indictment, was that Nachlinger owned a buggy, and Clark and Haffernick stole it and sold it to appellant, and that the evidence would justify the jury in finding that appellant at the time he bought it or received it knew it was stolen property.

The court charged the jury, over appellant’s exception duly reserved, that if defendant fraudulently received from George Clark and Joe Haffernik, or from George Clark alone, the buggy mentioned in the indictment, and same had been theretofore acquired from J. A. Nachlinger by the said George Clark and Joe Haffernik, or by George Clark alone, in such manner as to constitute theft thereof, etc., they would find him guilty of receiving stolen property. We are of opinion that appellant’s exception to this phase of the charge is well taken. It is necessary in indictments charging this offense to name the parties from whom the stolen property was' received by the accused if the names are known, and, if not, the grand jury would be justified in alleging that the names of the parties from whom the property was received were unknown to that body. The authorities seem to be practically unanimous on both propositions. Since the rendition of State v. Perkins, 45 Tex. 10, the jurisprudence has been harmonious to the effect that the names of the parties from whom the accused received the stolen property must be stated. There are quite a number of these cases, which will be found collated in Mr. Branch’s Ann. P. C. pp. 1366, 1367. Specifically, we might mention Brothers v. State, 22 Tex. App. 447, 3 S. W. 737; McKay v. State, 49 Tex. Cr. R. 118, 90 S. W. 653; Franklin v. State, 53 Tex. Cr. R. 547, 110 S. W. 909. In the instant case the grand jury alleged directly and affirmatively that appellant received- the property from the two named parties. In order then to convict, it was necessary for the state to meet these allegations with appropriate evidence; otherwise the state’s case would fail. In this respect it is somewhat analogous in alleging ownership in a theft case. Wherever descriptive aver-ments are made, whether necessary or not, the proof must meet these averments. But it is the law as announced by the decisions that the allegation of the names of the parties from whom the property is received is necessary. It is an element of description that cannot be set aside, and it is the universal rule that all necessary allegations must be met by corresponding evidence. Appellant’s exception, therefore, to that portion of the charge where it authorized a conviction if the jury should find appellant received the property alone from Clark, is well taken. It was necessary on this phase of the case for the evidence to show that he received it from both- parties. The law holds such allegations are necessary and not to be dispens-* ed with; therefore the evidence must corie-spond to meet such allegation. Tucker v. State, 23 Tex. App. 512, 5 S. W. 180; Williams v. State, 69 Tex. Cr. R. 163, 153 S. W: 1136; Meek v. State, 71 Tex. Cr. R. 433, 160 S. W. 698.

There is another question in the case which will hardly occur upon another trial. The court submitted alone the question of receiving stolen property, the indictment containing averments he received and. concealed the property. The court submitted alone the reception of the property and not the concealing. While the verdict is general, yet it seems , this could apply as well to that count not submitted to the jury as to the other. The evidence is not as clear and forceful as it might be upon that phase of the indictment. It is true he bought the buggy from the named parties and paid them for it, and there are subsequent facts indicating, if he did not know then, he learned afterward that the buggy was not honestly acquired. If he did not know at the time he received it that it was dishonestly acquired, he would not he guilty of fraudulently receiving the property; but if subsequently he ascertained that the property was stolen, and after so finding concealed it with a fraudulent design, he might be guilty under that phase of the indictment. We mention this so that upon another trial, if the matter becomes an issue in the ease, the verdict will be made to correspond with the facts of the case submitted by the court. We are not here passing, or undertaking to pass, on any probable complications that might arise by virtue of any question of jeopardy.

The judgment is reversed, and the cause remanded.
      <§x=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MORROW, J.

text:
    Ex parte HILL.
    (No. 4966.)
    (Court of Criminal Appeals of Texas.
    March 6, 1918.)
    1. Rail <S=>43 — Homicide—Right to Bail— “Evident.”
    Under Const, art. 1, § 11, providing that all prisoners shall be bailable by sufficient sureties unless for capital offenses when the proof is evident, the word “evident” means that _ unless it is clear not only that accused is guilty, but that the jury, if they enforced the law, would probably assess capital punishment, accused is entitled to bail.
    [Ed. Note. — For other deflations, see Words and Phrases, First and Second Series, Evident.]
    2. Bail <s=j49 — Homicide—Right to Bail.
    In prosecution for murder, evidence held not such as to warrant denial of bail.
    Appeal from Criminal District Court, Travis County; James R. Hamilton, Judge.
    • John W. Hill, under indictment for murder, was refused bail, and he appeals.
    Reversed, and bail fixed.
    Martin & McDonald, W. D. Caldwell, and Warren W. Moore, all of Austin, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

The relator, under indictment for murder, was refused bail, and prosecutes this appeal.

Omitting any comment on the facts, and stating only enough of the evidence to indicate the environments of the transaction, we find from the record presented that there is evidence that both the deceased and appellant were officers authorized to carry arms, that a short time, from one-half to three-quarters of an hour, before the homicide the deceased assaulted appellant in the Driskell Hotel at Austin, and during the progress of the assault drew his pistol and struck appellant a blow on the head; that in the affray the deceased received an injury to his finger; that he went to the office of a doctor several blocks from the Driskell Hotel and had the wound dressed; that appellant walked up Congress avenue, the main street of the city, and at a point about four blocks from the Driskell Hotel appellant shot and killed deceased.

We gather from the evidence that at the time of the homicide deceased had just turned the corner from one of the streets leading into Congress avenue and started south, and that appellant had stopped a moment before in front of a news stand and cigar store a short distance south from the corner mentioned.

The keeper of the store testified that after he and appellant had exchanged a few words he saw appellant draw his p'istol and shoot several times, and, turning, saw the deceased fall. Another witness said that while across the street he heard a shot, wheeled, and saw a man standing near the corner; after a very short interval he heard another shot, and saw J the man apparently in a sitting position with both hands on his stomach, apparently going down gradually; that the firing continued, and he saw a flash and puff of smoke from the man described, who immediately thereafter collapsed and rolled on the sidewalk; that all occurred suddenly, covering a very short time; that four shots came from the south, and one from the man who was killed, who was identified as deceased named in the indictment; that immediately after deceased fired he saw a pistol fall from his hand; that deceased’s pistol was examined, and found to have been fired one time.

A witness who was assistant game warden testified that he met deceased a few days before the homicide, and was asked by him if appellant was still deputy, and expressed the wish that the six-shooter should be taken off of him, and said, “If you don’t, he and I cannot stay in the same town with a sixshooter.” That witness said he declined to deprive appellant of the six-shooter, and communicated to him the conversation prior to the difficulty at the hotel.

Article 1, § 11, of the Constitution provides:

“That all prisoners shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident.”
“Evident” has been defined as “plain, clear obvious.” Ex parte Boyett, 19 Tex. App. 45. Mr. Branch states the rule as follows:
“The rule is ‘all prisoners shall be bailable.’ The exception is ‘when the proof is evident’ that not only the accused is guilty, but that the jury will, if they properly enforce the law, probably assess capital punishment, this conclusion to be reached by the well-guarded and 'dispassionate judgment of the court or judge passing upon the question.”

Tested by this rule, which is supported by the decisions of this court, we believe that the trial court was in error in holding that appellant was not entitled to bail. Cases in point are Ex parte Smith, 23 Tex. App. 125, 5 S. W. 99; Ex parte Russell, 71 Tex. Cr. R. 377, 160 S. W. 76; Ex parte Stephenson, 71 Tex. Cr. R. 380, 160 S. W. 77, and cases cited.

A reversal of the judgment of the trial court refusing hail is ordered, and appellant is hereby granted bail in the sum of $6,000, upon the execution mf which, with sufficient sureties, he will be discharged pending' the trial of this case on its merits.


text:
    CARPENTER v. STATE.
    (No. 4763.)
    (Court of Criminal Appeals of Texas.
    Feb. 27, 1918.
    Rehearing Denied March 27, 1918.)
    1. Criminal Daw <§=H092(9) — Appeal—Extension op Time por Filins Bills op Exceptions.
    Under Code Cr. Proc. 1911, art. 845, relating to the time for preparing and filing statement of facts and bills of exception and the extension of such time, the limit to which extensions may be made is a total of 90 days after adjournment of the term.

      2. Criminal Law <§=>1092(8) — Appeal—1Time tor Filing Bills or Exceptions.
    The term at which an appellant in a. murder case was tried ended April 18th. On that day the court allowed 60 days for the filing of hills of exceptions and the statement of facts and on the day of the expiration thereof allowed 80 days additional which expired July 12th. On July 10th, which was two days prior to the expiration of 90 days from the adjournment of the term, the statement of facts and hills of exceptions were delivered to the trial judge, who filed the statement on July 16th and the bills of exceptions on July 21st, having granted an additional extension of 10 days from July 10th. The statement of facts contained 144 pages and the bills of exceptions 30 pages. Held that, no sufficient diligence having been shown, the statement of facts and bills of exceptions would not be considered, although where an appellant is diligent he will not be made to suffer in consequence of the fault of others.
    Appeal from District Court, Denton County; C. F. Spencer, Judge.
    Ernest Carpenter was convicted of murder, and he appeals.
    Affirmed.
    Sullivan & Hill and A. S. Baskett, all of Dallas, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant’s conviction was for murder and his punishment assessed at seven years’ confinement-in the state penitentiary.

The state, through the assistant attorney general, has filed a motion to strike out the statement of facts and bills of exception. The term at which the trial took place ended April 18, 1917. The statement of facts was filed July 16th and the bills of exception July 21, 1917, both more than 90 days after the end of the term. The court on April 13th allowed 60 days, which expired June 12th, and on that day allowed 30 days additional, which expired July 12th. On July 10th another extension of 10 days was ordered, and before the expiration of this last-named 10 days the document was filed. Appellant, answering the motion, says that on July 10 th, which was two days prior to the expiration of 90 days from the adjournment of the term, the statement of facts agreed to, bearing the agreement of the attorneys, was delivered to the trial judge, and at the same time the bills of exception were delivered to him, and that the trial judge on July 16th, approved and filed the statement of facts without correction, and on the 21st the bills of exception with modification on two of them. only.

The power of the trial'court to extend the time in which bills of exception and statement of facts may be filed is controlled by article 845, C. C. P., and the limit to which the extension may be made is a total of 90 days after adjournment. This has frequently been decided. Roberts v. State, 62 Tex. Cr. R. 7, 136 S. W. 483.

When an appellant is diligent in his efforts to secure a statement of facts and bills of exceptions and to cause them to be filed in the time required by law, he will not be made to suffer the consequences of the faults of others. George v. State, 25 Tex. App. 229, 8 S. W. 25; Vernon’s C. C. P. p. 826, and cases cited. Appellant insists that this rule should inure to his benefit under the circumstances of this case. The correctness of this view depends upon the facts as disclosed by the record. Looking, to these it appears that when the 60-day order expired the stenographer’s transcribed report of the evidence was in the hands of the leading counsel for appellant. This affirmatively appears in the application for an additional extension filed by appellant June 10th.

The statement of facts, containing 144 pages of typewritten matter, and the bills of exceptions, containing about 30 pages, were placed in the hands of the district judge 30 days after this application was made, being 28 days after the order for an additional ex-, tension of 30 days was made on June 12th. At the time they were placed in the hands of the judge there remained 2 days within which they could be filed under the law. Appellant insists that it was possible within these 2 days for the trial judge to have examined, approved, and filed the papers, and that it follows therefrom that’ appellant is not chargeable with the' fault; and in this connection says that the 10 days further extension of time by the judge on July 10th was for the convenience of the court, and that this appears from the order. We do not understand the record to be susceptible to this construction. It appears therefrom that on July 10th appellant made an application for a further extension of 10 days, and that thereafter the court entered an order in the following terms:

“On this the 10th day of July, A. D. 1917, came on to be considered the application of Ernest Carpenter to extend the time for filing statements of fact and bills of exception in said cause, and said application having been considered and good cause found for such extension, and it appearing to the court that an appeal has been taken from the judgment rendered therein and that the statement of facts and bills of exceptions because they are so voluminous cannot be filed within the time heretofore granted by this court for such purpose, it is therefore ordered by the court that the said Ernest Carpenter shall have 10 days from the 11th day of July, 1917, in which to prepare, have filed, and approved statements of fact and bills of exception in this cause.”

The exception to the rule' requiring the disregard of bills of exceptions and statement of facts filed after the time permitted by law is predicated upon the showing to this court of the absence -of laches on the part of appellant. This is the view expressed by this court in an opinion by Judge Hurt in George v. State, 25 Tex. App. 242, 8 S. W. 26, from which we quote as follows:

“When a statement of facts is filed after these times, and the party tendering or filing the same shall, to the satisfaction of this court, show that he has used due diligence to obtain the approval and signature of the judge thereto, and to file the same within the time prescribed, to wit, in term time, or within 10 days after adjournment, and that his failure to file the same in said time is not due to the fault or laches of said party or his attorney, and that such failure was the result of causes beyond his control.”

This rule has been rededlared and followed in a number of cases listed in Rose’s Notes on Texas Reports, vol. 5, p. 674. In many of these cases the character of diligence which must be shown is discussed by this court. Illustrating these views we take the following quotation from Riojas v State, 36 Tex. Cr. R. 185, 36 S. W. 268:

“Appellant presents to this court a bill of exceptions to the admission of certain evidence, signed and approved by the judge and filed after the expiration of the term. Accompanying the bill is the following explanation by the judge: ‘This bill of exceptions was handed me within the time prescribed by law, and during the term of the court at which the case was tried, but was in some manner misplaced, and it is a fact that the exception to the admission of the testimony was reserved by the defendant, through his counsel, at the time of the admission of the same; and the clerk of the district court of Atascosa county is here now ordered to file the same as part of the record in this case, and transcribe same, making a certified copy of same, and all indorsements thereon, and forward same to Austin as a part of the, transcript in said cause.’ This bill cannot be considered. While it seemingly was neglect on the part of the judge not to approve and file the bill of exceptions, it was the duty-of'counsel to follow up his bill, and see that it was approved by the judge during the term, and filed with the clerk. This is statutory. See George v. State, 25 Tex. App. 229 [8 S. W. 25]; Exon v. State, 33 Tex. Cr. R. 461 [26 S. W. 1088].”

This interpretation of the rule has been approved in numerous instances, notably Stanford v. State, 42 Tex. Cr. R. 345, 60 S. W. 253; Pollard v. State, 45 Tex. Cr. R. 124, 73 S. W. 953; Sullivan v. State, 62 Tex. Cr. R. 412, 137 S. W. 700. It is apparent from the authorities cited that the privilege of this court to consider a bill of exceptions or statement of facts filed after the time is not to be arbitrarily exercised, but to be brought into operation only in eases where proof is made satisfactory to this court, that the delay was not contributed to by the laches of the appellant. This has not been done in the record before us, and without violence to the practice long adhered to and often declared, we cannot, in the present instance, overrule the state’s motion to disregard the documents filed after the time authorized by law.

In this state of the record the judgment of the lower court is affirmed.

PRENEERGAST, J„ absent.
      cgcsFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <§z^>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, ■ P. J.

text:
    ROBERTS v. STATE.
    (No. 4837.)
    (Court of Criminal Appeals of Texas.
    Feb. 20, 1918.
    On the Merits, March 6, 1918.)
    1.Bail 3=70 — Recognizance on Appbai>-Neglect oe Proper Entry.
    Where defendant did what he could to have a recognizance, and entered into it, as the judge certifies, in open court, the neglect of one of the." officers of the court, as the clerk, to carry the recognizance properly into the minutes will not deprive defendant of his appeal, but the case will be continued that he may either have the recognizance entered upon the minutes, or have a sufficient recognizance fixed by the judge.
    2. Criminal Law <§=^>1092(16) — Appeal—Exceptions — “Filing Back.”
    Where exceptions of defendant to the refusal to give requested instructions were in fact presented to the court and became papers of the case at the time, and were deposited with the papers and the clerk, there was sufficient filing, and the order of the trial judge instructing the clerk to place his file mark on the papers as of the date of filing was not a filing back.
    3. Criminal Law 3=1092(16) — Appeal — Contest over Filing Back op Exceptions.
    If there is any contest insisted upon in the Court of Criminal Appeals as to the filing back of exceptions, the real condition of things should be made to appear by proper order of the trial court, as contests of such matters by motions, affidavits, and statements are not to be encouraged.
    4. Criminal Law 3=31092(16) — Appeal — Late Filing op Papers in Record.
    Where papers are in the record, and were not presented to the clerk for filing within proper time, but after the time had elapsed in which they should have been filed, that fact can be shown.
    5.. Criminal Law 3=31092(16) — Appeal—Exceptions — Failure op Clerk to Put File Mark on.
    Where requested instructions refused by the trial court ,are shown to have been indorsed by him as refused on a particular d.ay at the time of trial, the Court of Criminal Appeals will take the date as correct, and the mere fact of the clerk’s having failed to put his file mark on the papers at that time does not affect the legality of the filing of the exceptions.
    On the Merits.
    6. Indictment and Information 3=159(4)— Obliteration op Alias.
    In a prosecution for perjury, where, at defendant’s request, the court ordered the indictment changed to omit the expression “alias High Pockets,” defendant having been indicted as Ed Roberts and the alias, but a pencil or pen used in erasing the alias did not fully obliterate it, defendant had a right to have that done when he was called upon to answer the reading of the indictment, as he had a right to plead under whatever name he thought proper, and to have the indictment changed to conform to the name he gave.
    7. Perjury 3=32(1) — Evidence.
    In a prosecution for perjury, where defendant was not present at the first difficulty, but claimed only to have been present at a second transaction, when the killing occurred, and testified to what he saw, the details of the first difficulty were inadmissible against- defendant.
    8. Criminal Law 3=518(1) — Evidence — Confession — Incriminating Statement.
    In a prosecution for perjury committed by testimony on writ of habeas corpus for bail in a homicide case defendant having been arrested himself for the homicide, or as having a guilty participancy in it, testimony that while under arrest defendant denied any knowledge of the shooting, and his presence at the time and place, was inadmissible against him, as a statement made without warning and without writing, though he testified in the habeas corpus proceedings that he witnessed the difficulty between the homicide and deceased, though the testimony was not a confession with reference to the homicide, and though defendant was not telling the truth about the matter in the homicide case.
    9. Criminal Law @=518(2) — Evidence — Confession in Custody.
    To exclude defendant’s confession or incriminating statement, detention, legal or illegal, is sufficient, and it is not necessary that a complaint or indictment be filed to constitute the basis of the arrest.
    10. Criminal Law @=3351(3) — Evidence — Flight.
    In a prosecution for perjury committed on writ of habeas corpus for bail in a homicide case, evidence as to defendant’s evasion of the process of the court to bring him in as a witness on the trial for the homicide was not admissible against him on the theory that ,he was a fugitive, though if defendant had fled to avoid the 'indictment and trial for perjury the fact might have been shown in evidence.
    11. Witnesses @=344(4) — Credibility — Showing oe Business. ■
    In a prosecution for perjury, defendant was entitled to ask and obtain from a state’s witness the business in which he was engaged, or the calling or -occupation he pursued, to affect his credibility by showing that he was in the employ of a disorderly house.
    12. Perjury @=37(2) — Instruction—Definitions.
    In a prosecution for perjury, the trial court on request should have given a special charge defining the words “willfully” and “deliberately!’ in connection with perjury.
    13. Perjury @=37 (3) — Evidence — Proceedings Resulting in Perjury — Limitation:
    In a prosecution for perjury, where the state introduces the proceedings in the trial on which the perjury was committed, if the result of such former trial was adverse to the testimony of defendant charged with perjury, the court must limit the effect of the evidence; otherwise such a charge is unnecessary.
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Ed Roberts was convicted of perjury, and be appeals.
    Motion to dismiss denied, and judgment reversed, and cause remanded.
    J. Ed. Wilkins, of San Antonio, for appellant. E. B. Hendricks, - Asst. Atty. Gen., for the State.
   DAVIDSON, ■ P. J.

Appellant was convicted of perjury, and allotted 'two years’ confinement in the penitentiary.

Motion is made by the Assistant Attorney General that the appeal be dismissed because appellant’s recognizance was not entered properly upon the minutes in the trial court. The matter is in confusion as to whether it was or was not so entered. The transcript contains a- recognizance. The state attacks the verity of this, and says as a matter of fact it was not so entered. The judge certifies, as does the clerk, in addition to the record, that defendant and his sureties came into open court and were duly recognized in the amount fixed by the district judge. The only question ■ presented from this phase of the motion is that this recognizance was not carried forward into the regular minutes of .the term. The clerk certifies to his “rough minutes,” and attaches it- as an exhibit to the motion to dismiss,' showing that the recognizance was properly taken, but does not set out the recognizance in full. The motion to dismiss will not be sustained, but the case will be continued by this court to give opportunity to the trial court to have the recognizance properly entered. When this is done, the clerk will forward a certified copy to this court showing the fact of the entry. The defendant did what he could to have a recognizance; entered into- it,- as the judge certifies, in open court. This clearly entitled him to have his case considered on appeal, and the neglect of one of the officers to carry this into the minutes will not deprive him of his appeal, but the case will be continued that he may either have the recognizance entered upon the minutes, or a sufficient recognizance to be fixed by the judge. The clerk of this court will issue proper notice. to the court below to have recognizance properly entered upon the minutes of the court at that court’s early convenience.

There is also a motion to “strike out” some exceptions of appellant to give certain requested instructions, on the ground that the clerk certifies they were filed back by order of the court. Just what he means by this is not explained. The trial was had on August 3d. When these charges were presented and exceptions -taken to their refusal, it was on the 3d of August. Twenty-eight days later the motion for new trial was overruled. The clerk certifies these matters were ordered ■ filed back. If it is meant by this that the papers were presented to the judge at the time of the trial within the terms of the law and refused, as they show upon their face to have been, a^d the clerk neglected to put his file mark upon them - at that time, it would not be filing these papers back to place the file mark on them as of August 3d. - They were in fact presented to the court and became papers of the case at the time, and were deposited with the papers and the clerk. That was a sufficient filing, and the order of the judge instructing the clerk to place his file mark as of that date would not be a filing back. This would be but supplying an omission of the clerk and not filing back. If there is any contest insisted upon about this matter, the, real condition of things should be made to appear by proper order of.the court. Contests over matters of this sort by motions and affidavits and statements are not -to be encouraged. -If, as a matter of fact, the papers were not presented to the court at that time, the court’s certificate can show that fact. - We understand it to be the rule that where papers are in the record, and were not presented to the clerk for filing within proper time, but after the time has elapsed in which they should be filed, that fact can be shown. Where requested instructions refused by tbe court are shown to have been indorsed by him as refused on August 3d, at the time of the trial, this court would take that as correct. The mere fact of the clerk failing to put his file mark on it at that time would not affect the legality of the filing of the exceptions. This motion as presented to strike out these papers will not be granted. The clerk of this court will issue the proper order of this court to the trial court to enter upon the minutes of the trial court the recognizance as entered into, and to at once forward a certified copy of said recognizance.

On the Merits.

On a former day of the term there was an order entered of record postponing the trial of this case until a recognizance could be had properly in the trial court for the reasons stated in the opinion awarding the postponement. This matter has been properly attended to in the trial court, and a proper recognizance is now before the court, which attaches the jurisdiction of this court, and the case will be disposed of on the record. Appellant was convicted of perjury; his punishment being assessed at two years’ confinement in the penitentiary.

The allegation upon which the perjury is based, in substance, is that appellant swore on a habeas corpus hearing in a homicide case in which Way was charged with killing Louis Moglia, Sr., that before Way fired the first shot in that difficulty that young Mog-lia had started towards the north end of the counter where there was located his pistol. Way shot and killed the elder Moglia, the father of the young man. The indictment alleged in ordinary terms that this was material, and was willfully done, etc. We deem it unnecessary to discuss the question of the irregularity of the special term of the court. This matter seems to have been in compliance with the decisions.

At the request of appellant the court ordered the indictment so changed as to omit the expression “alias High Pockets.” Appellant was indicted as Ed Roberts, alias High Pockets. A pencil or pen was used in erasing the expression “alias High Pockets” in the indictment, but it did not fully obliterate it, and a question is raised upon this. Appellant had a right to have this done when he was called upon to answer to the reading of the indictment. He had a right to plead under whatever name he saw proper, and to have the indictment changed to conform to the name he gave. Upon another trial this matter should not arise, and the obliteration of it will be sufficient to erase it entirely. This might not amount to much in the case, but defendant had a right to have it done, and the matter is mentioned more specifically because in the charge of the court, in mentioning the case, he stated to the jury that the party was Ed Roberts, alias High Pockets. After it had been erased from the indictment this should not have occurred in the charge. This will not occur úpon another trial.

In order to review some of the bills of exception a brief statement of the trouble between Way and Moglia, in which the elder Moglia lost his life, will be necessary, as the prosecution for perjury grew out of that transaction, or rather the testimony on writ of habeas corpus of Way for bail. Way aad gone into a saloon owned by Moglia, and had taken a drink. After so doing he sat in a chair and went to sleep. After waking he missed a piece of jewelry, and called Mog-lia’s attention to the fact, and demanded its return. This brought a difficulty in which hard words ensued, and the elder Moglia became very much offended at his son being charged with theft. This charge by Way seemed to have been directed against young Moglia, and the father, who later became the deceased, interfered and expressed great indignation that his son should be charged with such theft. Two or three hours subsequent to this Way appeared in the saloon, and the difficulty occurred in which the elder Mog-lia was killed. The contention of Way on the writ of habeas corpus, and the truthfulness of which had to be overcome in order to make appellant guilty of perjury, was that young Moglia started towards the north end of the counter to get his pistol and Way began shooting. Appellant swore upon the habeas corpus trial that young Moglia did start in that direction, and that a pistol was kept at that point. On appellant’s trial the state introduced evidence of the first trouble between Way and the Moglias with reference to the jewelry that was taken. The details of this trouble were introduced against appellant on his trial. Exception was reserved. We are of opinion the exception was well taken. Appellant was not present at the first transaction, and was not charged with notice or knowledge of those matters. He claims to have been present at the second transaction, and testified to what he saw. Matters that occurred at the time of the homicide when appellant said he was present would be evidence because they were within his knowledge and observation.

Appellant was arrested almost immediately after the killing, or within a very short time, and carried by the police officers to their headquarters. While under arrest he was asked with reference to the shooting and denied any knowledge of it or his presence at the time and place. The details of these bills of exception, there being several, of them, are not necessary to state. The court admitted the testimony upon the theory that he was not charged with the homicide, and it was not a confession, and that this perjury was an independent offense, and, therefore, these statements could be used against him, although' under arrest without warning, or being in writing. ■ Subsequently, on tbe habeas corpus trial appellant did state be was present, and saw young Moglia start in the direction of his pistol. The denial was used as evidence of his guilt in this case. It was a criminating fact, as thought by the state. We are of opinion that this testimony was not admissible, and the fact that it was not a confession with reference to the homicide, or that he was not telling the truth about this matter in the homicide case, would not authorize the state to use that statement as an incriminating fact to convict for the perjury. See Branch’s Orim. Law, § 208, also 218; Davis v. State, 19 Tex. App. 201; Taylor v. State, 3 Tex. App. 387; Murff v. State, 76 Tex. Cr. R. 5, 172 S. W. 238; O’Connell v. State, 10 Tex. App. 567; Robinson v. State, 55 Tex. Cr. R. 42, 114 S. W. 811. There are several bills of exception with reference to this matter, and this denial seems to have been made, as shown by one or more of the bills, especially bill 13, because he had been arrested for the homicide, or as having a guilty partieipaney in the homicide with Way. It is evident from these bills that appellant was arrested in connection with the homicide, and sharply-questioned by the officers, and these statements were denials of his presence at the time and place of the killing and participan-cy in the homicide of Moglia by Way. In this connection he further made a statement, though it was just subsequent to the other statement, to Hansen that he was present at the time and saw the transaction. The purport of this denial and statement to Hansen was a contradiction of the statement to the officers which it seems Hansen had heard made by appellant to the officers. Having introduced the statement of the officers, this statement of appellant should have gone to the jury. It is unnecessary to discuss this matter further. Upon another trial these statements will be excluded. It was not necessary that a complaint or indictment be filed to constitute basis of arrest. It is sufficient if he be under arrest even on suspicion. Detention, legal or illegal, would be sufficient to exclude such confession or statement.

There are several bills of exception which it is not necessary, we think, to notice in detail, as all bear upon the same matter. Process had been issued for appellant to testify in the trial of Way. Hailing to appear, application for a continuance was made by Way for his presence; also at one time appellant was brought under arrest or attachment by an officer in the Way case. These matters are set out in several bills of exception and at length, but the above is practically the substance of the contention. This testimony was not admissible. The court seems to have admitted this testimony upon the theory that appellant was a fugitive, and that if he did evade process of the court in the Way case, such flight could be used as evidence of his guilt in this case. None of this testimony was admissible in his trial for perjury. Appellant had testified in the habeas corpus trial as charged in the indictment upon which the perjury was predicated. Way was subsequently indicted and sought the attendance of the appellant as a witness in his behalf. If appellant had fled to avoid this_ indictment and trial, the question of flight might have been used, but not his evasion of process in the Way trial for murder. This is a condensed statement of these matters, and it was erroneous. None of these matters will be permitted to go before the jury upon another trial. None of the evidence with reference to appellant’s evasion of the process of the court in the Way trial was legitimate evidence against him in this case as presented by this record.

There was a witness introduced by the state thought to be important. On the cross-examination of this witness appellant offered to prove that he was in the employ of the Zimmerman disorderly house, and that it was a well-known disreputable assignation and bawdyhouse, and that this witness frequented and was employed in that place. We are of opinion the defendant could ask and obtain from the witness the business in which he was engaged, or calling, or occupation pursued.

Appellant excepted' to the court’s charge for several reasons, and asked special instructions, which were refused. The court did not define what is meant by the words “willfully” and “deliberately” in connection with perjury. We are of opinion that the court should have given the special charge defining these words. We would not feel inclined to reverse for failure to do so usually, yet the statute uses those terms, and it is well enough, and in fact we think the court should define them to the' jury, especially when requested so to do.

The state introduced some of the proceedings in the habeas corpus trial of Way upon which this perjury is alleged to have been committed. This was admissible for reasons well known to the profession and understood in our jurisprudence, but appellant requested the court to limit the effect of this testimony, which was declined and refused. Wherever the result of the trial is adverse to the party on trial, and the perjury is alleged as growing out of that trial, it is necessary under the decisions to limit its effect to the purpose for which it was introduced. There is another line of decisions which hold that where the result of that trial was favorable to the side on which the witness testified, and upon which the perjury is based, it would not be necessary to so charge because the verdict or judgment was favorable to the side for which he testified. The bill is a little indefinite, but these two lines of decisions are well recognized, and if there is a doubt about this matter upon another trial the court should limit this testimony to the purpose for which it was introduced. ■

There are a great many bills of exception in the record, and the questions are elaborately presented, but disposing -of the case We have grouped them rather than follow the bills of exception seriatim. We deem it unnecessary to go into a discussion of each bill. There are a series of them presenting the same question from different views; therefore we have confined ourselves to grouping the questions rather than following them seriatim.

Eor the reasons indicated, the judgment will be reversed, and the cause remanded.
      <S=For other- cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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


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

text:
    WOOL v. STATE.
    (No. 4546.)
    (Court of Criminal Appeals of Texas.
    March 6, 1918.)
    1. Receiving Stolen Goods <§=>8(1) — Burden or Proof.
    Where one accused of receiving stolen goods set up that he bought the goods without knowledge or notice of the theft, the state had the burden of showing that the theory of purchase was false. (Per Davidson, P. J.)
    2. Receiving Stolen Goods <©=3 — Elements of Offense.
    If the accused purchases goods in good faith, he is not guilty of receiving stolen goods, but, if he knew of the theft, the purchase would be no defense. (Per Davidson, P. J.)
    3. Criminal Law <§=>814(8, 9) — Receiving Stolen Goods — Instructions—Defensive Theories.
    Where one accused of receiving stolen goods advanced the theory of purchase in good faith, such theory’ called for a charge on that subject as well as an acquittal unless disproved. (Per Davidson, P. J.).
    4. Criminal Daw <§=419, 420(11) — Receiving Stolen Goods — Evidence—Hearsay.
    In prosecution for receiving stolen goods, testimony of the sheriff of another county, who arrested the actual thief, as to what the thief said as to his having burglarized various stores, and to the effect that such thief was the most notorious burglar and expert in that line of crookedness in that section of the country, was inadmissible as hearsay, under an indictment alleging that the thief was to the grand jurors unknown. (Per Davidson, P. J.)
    5. Receiving Stolen Goods ⅞=>7(3) — Indictment — Requisites and Sufficiency.
    An indictment for receiving stolen goods should allege either the name of the thief or that his name was to the grand jurors unknown.
    ■6. Criminal Law <§=>419, 420(8) — Evidence-Receiving Stolen Goods — Hearsay.
    Testimony of a witness as to what accused’s ■ex-partner told him after dissolution of the partnership, as to a conspiracy between the partners to receive stolen go'ods_, was inadmissible •against one accused of receiving stolen goods. (Per Davidson, P. J.)
    7. Criminal Law <§=>556 — Evidence — Con-CLUSIVBNESS ON PARTY INTRODUCING EVIDENCE.
    Where the state puts in exculpatory statements, they will be'taken as true until the state •discharges the burden of proving them ' untrue. <Per Davidson, P. J.)
    8. Criminal Law <§=>372 (1) — Evidence — Other Offenses — Receiving Stolen Goods.
    In a prosecution for receiving stolen goods, where accused relied on the theory of purchase in good faith, the state should have been permitted to show a long course of dealing with one accustomed to burglarize stores, by which accused purchased such stolen goods, on the theory that a series of acts of the nature of that involved in the offense charged may be proved to determine intent. (Per Morrow, J.)
    Prendergast, J., dissenting.
    Appeal from District Court, Wichita County; Wm. N. Bonner, Judge.
    J. Wool was convicted of receiving stolen goods and he appeals.
    Reversed and remanded,
    Martin & Oneal, of Wichita Palls, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

One count of the indictment charged appellant with theft of property from Viles, and the other with receiving stolen property from some; party to the grand jurors unknown. These transactions are alleged to have been committed on the; 25th of October, 1916. The conviction was for receiving stolen property.

The testimony for the state is' to the effect that a small quantity of the goods claimed to have been taken out of Viles’ store when burglarized was subsequently found in appellant’s secondhand store in Wichita Falls. The goods were found in possession of appellant between the first and middle of January. Viles lost a greát many goods, under his testimony, but very few were found in possession of appellant which Viles identified. There were a number of other burglaries committed in different localities of the state from about the 12th of July to the 25th of October, in Wise, Childress, Knox, and Wichita counties. There seems to be no claim that appellant had anything to do with any of these. _ The allegation is that he received stolen goods from some party to the grand jurors unknown. There were various objections to the testimony with reference to the other burglaries covering the specified time from the 12th of July to the 25th of October. The goods from some of the stores were not traced to appellant’s possession; that is, he was never found in personal possession of those goods. The state undertook to show by Levine, who was found with most of the stolen goods long after his dissolution of partnership with appellant in another county, that he got said goods from appellant in November. Some of these Levine had sold in Dallas, some in Pt. Worth, and some he carried to Paris and other places. Levine claims 'at the dissolution of their partnership he purchased these goods and carried them away from Wichita Palls to Paris, in Lamar county, and thence to various places, and sol'd them. If' appellant knew the goods were stolen or had' any connection with them in any way, it is by the testimony of Levine. Appellant claims to have bought the goods found in his possession and without the knowledge or notice of the theft.

This was in direct conflict with the theory of the state, and, having put it before the jury, it was necessary for the state to show this theory of purchase false. This might be done by positive or circumstantial evidence.

If appellant bought the goods in good faith, there was no case against him. If he bought the goods with the knowledge of their theft, the purchase would be no defense. Fraud must exist at the time of receiving the goods. Many of the cases are found collated in Mr. Branch’s Ann. P. C. pp. 1365, 1366, 1367. Levine testified in behalf of the state that appellant purchased the goods. He states among other things:

“It was a long time ago that I first saw these goods in Wool’s possession or in the store. I first saw them there after Yiles’ store was burglarized, about three or four months after that; yes, about four months after the store was burglarized. * * ⅜ About these goods, Wool told me that he bought a bankrupt stock; that a fellow—two fellows from Oklahoma—one he told me came about three weeks before; he asked me about buying a bankrupt stock; he could buy a bankrupt stock and sell it cheap. That fellow' came over and asked him about three weeks before. * * * I do not know what month these goods first came to the store; it was a long time ago; two or three or six months, I don’t know. * * * Yes; all of these goods here were brought to our store while I was in partnership with Wool. Yes; Wool and I were both working together when these goods were brought into our store. I did not buy these goods; Wool bought them. Two fellows came there before that and wanted to sell a bankrupt stock. I do not know who they were either, these fellows that come to sell the bankrupt stock; I did not ask their names. I do not know how long these goods were in our store there before Wool bought me out. But I think that this $2,000 worth of goods here, that I got from Wool when he bought me out, they had been in our store there about four months at the time that Wool bought me out. Wool bought me out some two months before .Christmas. But these goods that I got from Wool, these goods here, had been in our store something like six months before Christmas. * » * As to how long it was before I left here that I saw this tall dressed-up man, or before I sold out to Wool that I saw him, will say that I did not see him. I did not see any tall dressed-up man. I saw one about three weeks before. He came to make arrangements. He wanted to sell some stock, and Wool said he was going to le.t it go, and then the man came back, and Wool made a deal with him.”

The purchase theory in good faith called for a charge, as well as an acquittal, unless shown false. Stanfield v. State, 73 Tex. Cr. R. 292, 293, 165 S. W. 216; Grande v. State, 37 Tex. Cr. R. 54, 38 S. W. 613. Branch’s Ann. P. C. p. 1368. As a matter of course, there must be knowledge of the fact the goods were stolen at the time of the reception. Branch’s Ann. P. C. p. 1367, for cases.

There is a bill of exceptions- reserved to the testimony of the sheriff of Childi’ess county, as to statements of a party named McCall whom he had arrested for the burglary of Galbraith’s store, in August, 1916. At the time of the first arrest he found some of the goods from Galbraith’s store in McCall’s possession.. McCall was placed in jail in Wichita Falls and escaped. Later he- was arrested in Nolan county. In December, 1916, while a- prisoner at Sweet-water, McCall and the sheriff of Childress county had a conversation, in which McCall made statements to the effect that he had committed various and sundry burglaries in divers places, and that “some Jews in Wichita Falls handled” the goods for him. Pursuant to McCall’s statement, the sheriff'of Childress'county and others found some of the indicated goods- in possession of appellant in Wichita Falls. The conversation occurred on December 26th. This officer testified that, in pursuance to McCall’s statement, about January 6th he found some- of the goods in appfelliant’te store. It seems the only goods found in appellant’s store were taken from the stores of Yiles and Galbraith. None of the goods, so far as the record discloses, as the writer recalls, taken from the other burglarized stores, were in appellant’s possession. Appellant- was not present at the time the conversation occurred and knew nothing about it. Other evidence was admitted that McCall, in another county, committed a theft, and perhaps a burglary in connection with it, of 2,500 skunk skins. It was not sought to connect appellant with this transaction so far .as the writer can ascertain from the record. It was also testified, over objection, that McCall was the most notorious burglar and expert in that line of crookedness in that section of the country.

Various and sundry objections were urged to this testimony, which should have been sustained. All the authorities, so far as the writer is aware, reject statements of this character. These cases will be found collated in Mr. Branch’s Ann. P. C. p. 1366. In Richardson v. State, 75 S. W. 505, it was held that it was error to admit proof of the declarations of the thief, made in the absence of the defendant, to the effect that defendant had agreed to receive the property. The sheriff of Childress county testified that McCall stated to him that he had. arranged with these Jews to receive stolen property. McCall was a third party, not included in this record or in any way connected with it by any allegation. The indictment alleged that the property was received from some one to the grand jurors--unknown. This was hearsay evidence occurring between the sheriff of Childress--county, and McCall. If appellant received' the goods from McCall, the indictment should have so alleged. The grand jury had full knowledge of that fact when the Indictment was found February 23, 1917. This conversation occurred on December 26, 1916. Some of the goods, under the sheriff’s testimony, from Galbraith and Viles’ stores were found in appellant’s possession about the 6th or 8th of January, 1917. The grand jury knew, or could have known by any sort of diligence, the same facts to which the sheriff of Childress county testified. If McCall had been the party in the indictment mentioned from whom appellant received the goods, his confession might be admissible, not against appellant, but against McCall.

Again, it is the uniform rule that the name of the party from whom stolen goods are received should be stated in the pleading. If that is not possible, then the grand jurors may allege the name to be unknown. In State v. Perkins, 45 Tex. 10, Judge Moore, who delivered the opinion, uses this language:

“The person from whom they were received must also be alleged in the indictment.”

Quite a number of these cases are collated by Mr. Branch’s Ann. P. C. p. 1367. He thus states the rule:

“If the evidence makes it apparent that the grand jury knew, or could have ascertained by the use of reasonable diligence, the name of the party from whom the property was received, a conviction will not be sustained if the allegation is that such person was unknown. McKay v. State, 49 Tex. Cr. R. 118, 90 S. W. 653; Williams v. State, 69 Tex. Cr. R. 163, 153 S. W. 1136.”

The same rule was laid down in Yantis v. State, 65 Tex. Cr. R. 564, 144 S. W. 947.

It is sufficiently clear and plain that the grand jury had full knowledge of McCall’s statement when the indictment was found. They doubtless indicted McCall for the burglaries indicated by him. Now, if McCall had been included in the indictment as the party from whom appellant received the stolen goods, his confession could be used against him, connecting him with the matter as the thief, but not against appellant. The authorities seem to settle this proposition. Tucker v. State, 23 Tex. App. 518, 5 S. W. 180; Cooper v. State, 29 Tex. App. 8, 13 S. W. 1011, 25 Am. St. Rep. 712; Goldstein v. State, 75 Tex. Cr. R. 395, 171 S. W. 709; and Meek v. State, 71 Tex. Cr. R. 433, 160 S. W. 698. In these cases the indictment alleged the name of the parties from whom the property was received, and, having done so, the confession of the thief was admitted against him. A quotation from the Tucker Case is as follows:

“Upon the trial the court permitted the state, over defendant’s objection, to prove by one Thed-ford that he met Noon Tucker driving said yearling to deliver the same to Bachelor, to whom the same had been sold by defendant; that Thedford asked Noon Tucker ‘if that (meaning said yearling) was one he had maverieked’; that ■said Tucker at first made an evasive answer to said question, but afterwards said it was one •they had raised. This testimony was, we think, ■unquestionably competent as bearing upon the issue of the guilt of Noon Tucker of the theft of the yearling. It was essential for the state to prove that Noon Tucker had committed a theft of the yearling, in order to establish the charge against the defendant contained in the second count of the indictment.”

In the Mooney Case, 76 Tex. Cr. R. 543, 176 S. W. 53, the opinion states that, the indictment having made certain allegations', it was necessary for the proof to meet the allegations. The quotation is as follows.:

“The indictment alleged appellant received said cattle ‘from a person to the grand jurors, unknown.’ It was proper, if not necessary, that this should be proven.”

The state, as the writer understands this record, did not undertake to show that the property was received from a party to. the grand jurors unknown, or use any diligence to ascertain the name. It is only where the same is not known and cannot be ascertained by reasonable diligence that the allegation of an unknown owner or party is permitted. The testimony, therefore, from every viewpoint, of the sheriff as to. statements of McCall was inadmissible. It did show, however, that the allegation of reception of the goods from an unknown party was not authorized. Cases already cited; Branch’s Ann. P. C. p. 1367.

Objection was also urged to. the testimony of the witness Chenault. Devine testified that he and appellant had been partners in a secondhand business, and, without going into details with reference to those matters, he states that about two months before Christmas the^ dissolved partnership on not very friendly terms; that he took his goods and moved to Paris and went into business. Nearly all of the goods that were taken from these burglarized stores were found either in his possession or in places where he had disposed of them. A great quantity of these goods were found, in pursuance of his statement, at Ft. Worth and Dallas, and taken back to Wichita Falls, and were in court at the time of the trial of appellant. While in Paris, where he set up his store, he had conversations with Chenault. These conversations, acts, and declarations were admitted through Chenault. Appellant was in Wichita Falls. These towns were some distance, practically 100 miles, apart. We deem it unnecessary to state the conversations ; they are voluminous and the bills lengthy. These matters were not admissible. They' were declarations of Levine Long after the conspiracy, if there was one, between him and appellant. The acts and declarations of a coconspirator cannot be introduced, except as against himself, after the termination of the conspiracy or the purpose involved in their agreement. This is so well settled we deem it unnecessary even to cite authorities. They were furthermore conversations, acts, and declarations between third parties in the absence of defendant, and could not possibly be binding upon or used against him. The writer is of the opinion that those extraneous burglaries were inadmissible against appellant, except those in which he had been in possession of the goods.

There is another matter that might be mentioned in connection with the purchase theory before closing this opinion. There was testimony by the state that appellant purchased these goods. The jury should have been instructed that he was entitled to the benefit of his purchase theory, and should have been instructed that, if there was a reasonable doubt of this matter, he should hare had the benefit of that doubt in the charge. The jury should also have been instructed that, where the state puts in exculpatory statements, the statement will be taken as true,' and the state must prove same to be untrue. Unless the state proves same false, appellant would be entitled to an acquittal. The authorities will be found collated in Mr. Branch’s Ann. P. 0. pp. 1365-1367, inclusive.

The judgment will be reversed and the cause remanded.

PRENDERGAST, J.

I respectfully dissent.

My dissenting opinion in the companion case, No. 4547 (201 S. W. 1006), this day decided, is applicable herein.

MORROW, J.

(concurring).

Appellant

was convicted of receiving property which had been stolen from W. W. Viles. Viles was a merchant at Burkburnett, in Wichita county, and it was proved without dispute that his store was burglarized on the 25th day of October, 1916, and that certain property was stolen from it, and that some of the property was found in the possession of appellant. Appellant was a merchant at Wichita Palls. He had previously, been in partnership with one Mike Levine. Levine was also charged with receiving stolen property, and testified as a witness on behalf of the state, in substance stating that he and appellant had been partners in business, and that appellant had bought the stolen goods, and that in the dissolution of the partnership a part of the stolen goods came into the possession of the witness, Levine. The state having proved that Viles’ goods were stolen, that some of them were in appellant’s possession, and that he had bought them, was charged with the burden of proving that he received them with a guilty knowledge and intent. To make this proof it relied in part upon the evidence of an accomplice and in part upon circumstantial evidence. The latter consisted of the testimony of one Galbraith that he was a merchant in Kirkland, Childress county, and that on the 28th day of August, 1916, his store was burglarized and certain goods taken therefrom, a part of which was subsequently found in the possession of appellant. Similar testimony was given by Thomas, a witness, with refer- • ence to property stolen from his store at Alvord, in Wise county, on the 12th day of July, 1916; and with reference to a burglary of the store of one Collins at Ringgold, on the same date, and the finding of some of his stolen property in appellant’s possession. One Maloney gave evidence of a similar transaction concerning his store at Goree, Knox county, on August 18, 1916. He also testified that a part of his property was found in the possession of one McCall. On the locating of some of these stolen goods in appellant’s possession he told the sheriff that he had bought them from Mike Levine. The sheriff testified that he had a conversation with a man by the name of McCall at Sweetwater, about the 25th day of December, 1916, in which McCall confessed to some of the burglaries referred to, and further told the sheriff that certain Jews in Wichita were handling his stolen property, and gave the sheriff a description of the locality of the place of business of the Jews to whom he referred, from which description the sheriff identified, he says, the place of business of the appellant.

These circumstances suggest that McCall was engaged systematically in committing burglaries of merchants’ stores, and that the fruits of his crime systematically found their way into the possession of the appellant. Appellant’s explanation of his possession was the purchase of the goods. The fact that appellant had in his possession a part of the property stolen from the store of Viles, explained by the statement that he purchased it, might be regarded as of little weight in showing a criminal intent. One might innocently purchase stolen goods in a given instance. . If, however, it could be shown, either circumstantially or directly, that he purchased stolen goods a number of times, that they were all stolen in a similar manner by burglary, ttat the goods were similar in their character, merchandise, that the burglaries were committed by one individual, and that the character of business that the appellant was doing was a convenient vehicle for the disposition of stolen property, there would be presented a state of facts from which the inference of guilty intent might be inferred with much greater certainty than from a single transaction. These facts, we think, come within the principle often recognized by the text-writers and the courts wherein a series of acts of a nature similar to the act involved in the crime charged on trial may be proved for the purpose of enabling the jury to determine the intent and knowledge with which the main act was done. This principle is a well-established one. The difficulty presented in all instances is the determination of the question as to whether it is applicable to a given case. A discussion of it with reference to the possession of the stolen goods will be found in Mr. Wigmore’s Work on Evidence, vol. 1, p. 410 et seq., sec. 324. As said in Ruling Case Law, vol. S, p. 203:

“It is competent to show that a crime charged was a part of a common scheme or plan which included numerous offenses. The principle on which such evidence is received to show intent or state of mind is simply the principle which the human mind instinctively applies in ordinary affairs of life. If the question is whether a given. act was accidental or intentional, the fact that the actor has at numerous times performed similar acts under circumstances forbidding the idea of accident is very strong proof that the act under investigation was also intentional.”

The text cites and in the notes are listed many cases: Thompson v. United States, 144 Fed. 14, 75 C. C. A. 172, 7 Ann. Cas. 62; Thomas v. U. S., 156 Fed. 897, 84 C. C. A. 477, 17 L. R. A. (N. S.) 720; State v. Dobbins, 152 Iowa, 632, 132 N. W. 805, 42 L. R. A. (N. S.) 735; Com. v. Snell, 189 Mass. 2, 75 N. E. 75, 3 L. R. A. (N. S.) 1019; State v. Hyde, 234 Mo. 200, 136 S. W. 316, Ann. Cas. 1912D, 191; State v. Routzahn, 81 Neb. 133, 115 N. W. 759, 129 Am. St. Rep. 675; State v. Lapage, 57 N. H. 245, 24 Am. Rep. 69; People v. Molineux, 168 N. Y. 264, 61 N. E. 286, 62 L. R. A. 193; State v. Welden, 39 S. C. 318, 17 S. E. 688, 24 L. R. A. 126; Dawson v. State, 32 Tex. Cr. R. 535, 25 S. W. 21, 40 Am. St. Rep. 791; State v. Downer, 68 Wash. 672, 123 Pac. 1073, 43 L. R. A. (N. S.) 774. Notes: 44 Am. Rep. 300; 105 Am. St. Rep. 983; 62 L. R. A. 218; 43 L. R. A. (N. S.) 670, 756, 780; 11 Eng. Rul. Cas. 241; Dietz v. State, 149 Wis. 462, 136 N. W. 166, Ann. Cas. 1913C, 732.

The principle has often been applied in our own court, as will be noted in cases listed in Kaufmann v. State, 70 Tex. Cr. R. 441, 159 S. W. 58; Gray v. State, 77 Tex. Cr. R. 226, 178 S. W. 337. I am therefore of the opinion that in the instances developed in the evidence in this case, where the proof shows that the stores of merchants were burglarized by McCall, and the stolen goods were found and identified in the possession of appellant, that the evidence is competent. I think the confession of McCall to the burglaries committed by him (waiving the defect in the indictment referred to by the presiding judge) was admissible against the appellant to show the theft of the articles which came into his possession. It is elementary in this offense that the state must prove, first, that the goods were stolen; second, that the accused came into possession of them knowing they were stolen. In making proof of the first element the confession of the thief is admissible. I ■ do not think that the statement of McCall testified to by the sheriff, which tended to connect appellant with the receipt of the goods, was admissible. It should have been excluded as hearsay. McCall did not testify to it nor did he make confession or statement of it in appellant’s presence or hearing, nor was it made as shown by the record, under circumstances which admitted the statement of one co-conspirator or coprincipal during the commission of the act or in furtherance of a.'common design. I regard that part of the statement of McCall proved by the sheriff as damaging hearsay testimony, requiring a reversal of the case. After the. dissolution of the partnership between Mike Levine and appellant, Mike Leyine was found in possession of certain articles stolen from the store of Viles and from the other stores mentioned by them. At the time he was so found in possession of them, some of them were in Dallas, and some of them were in Paris, Tex., and other places remote from Wichita. The state was permitted to prove certain statements made by Levine in the absence of appellant, and which tended to connect appellant with the crime. I think these statements made in appellant’s absence by Levine, at the tipie they were made, as shown by the evidence, were hearsay and should have been excluded. It is clear that at the time they were made appellant and Levine were not acting together; that their criminal design, if one existed, had been completed and their relationship had ceased. The admission of this evidence was, I think, reversible error.

For these reasons I concur in the reversal of the case.
      <fcs>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes