text:
    LONG v. STATE.
    (No. 3673.)
    (Court of Criminal Appeals of Texas.
    Oct. 13, 1915.)
    Criminal Law <&wkey;938 — New Tp.iad — Newly Discovered Evidence.
    Upon his trial for seduction, which resulted in a conviction, defendant’s sole defense was that prosecutrix was not chaste at the time of the alleged seduction. On the trial the witnesses, being excluded under the rule, a bystander who had heard the evidence afterwards volunteered that he had seen prosecutrix in an act of sexual intercourse, but his evidence was not J taken, when he was called, because of a misunderstanding between court and counsel as to the court’s decision as to the effect of the rule. Aside from one witness, who testified to intercourse with the prosecutrix, but was strongly discredited, there was no evidence of unchastity. Defendant moved' for a new trial for newly discovered evidence of other acts of intercourse which corroborated the witness who testified. Defendant swore that he had no notice of the existence of the new testimony. Held, that a new trial should have been granted, since ail such evidence was difficult of discovery, bears directly on the issue, and its weight and credit are for the jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2306-2315, 2317; Dec. Dig. <&wkey;938.]
    Prendergast, P. J., dissenting.
    Appeal from District Court, Franklin County; J. A. Ward, Judge.
    Dan Long was convicted of seduction. From a judgment overruling Ms motion for new trial for newly discovered evidence he appeals.
    Reversed.
    R. T. Wilkinson, H. L. Wilkinson, L. W. Davidson, and B. O. Shurtleff, all of Mt. Vernon, and C. E. Sheppard, of Sulphur Springs, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of seduction, and his punishment assessed at two years’ confinement in the state penitentiary.

Miss Ethel Hightower, the alleged seduced young lady, by her testimony makes a plain case of seduction. She is fully corroborated as to the promise of marriage and act of intercourse, Jim Williams testifying that appellant had admitted to him he was engaged to marry Miss Hightower during the Christmas holidays, and also had admitted the acts of intercourse. Appellant did not testify, nor offer any proof tending to disprove this state of facts, but rested his defense on the proposition that Miss Hightower was not a chaste and virtuous woman at the time he carnally knew her. The evidence makes a plain case of seduction — acts of intercourse, while appellant was engaged to marry the young lady, she yielding her virtue out of love and affection for appellant, having implicit faith and confidence in him.

There are many errors assigned, but after a careful review of the record we are of the opinion that none of them present error, unless it be that the court erred in refusing to permit the witness Leroy Davis to testify, and erred in refusing to grant a new trial on account of newly discovered testimony. As said before, the defense of defendant was that Miss Hightower was not a chaste and virtuous woman at the time he had carnal knowledge of her. When the case was called for trial, the rule was demanded. The court notified counsel they must call all their witnesses, as he would strictly enforce the rule. Leroy 'Davis had not been summoned as a witness, and be was not called, sworn, and placed under the rule. He remained in the courtroom and heard the witnesses testify until the evening recess. It was made plain .by the testimony by this time that the defense of appellant was that Miss Hightower had been guilty of acts of intercourse with other men prior to the time that appellant had become engaged to marry her. During the evening recess Derby Davis approached appellant’s counsel and told him that about three years before the trial, on a certain Sunday night, on the road between Mt. Yernon and Purley, he saw Thurman Davis and Ethel Hightower have sexual intercourse with each other. When court convened for the night session, appellant’s counsel explained the facts to the court and called the witness. Appellant insists he then called him to testify, and offered him as a witness. The court states he thought counsel was calling the witness to have him placed under the rule, and that he swore the witness, and ordered him to go out under the rule. It is undisputed that at this time the state objected to Leroy Davis testifying, and the court called counsel’s attention to the fact that at the beginning of the trial he had stated the rule would be strictly enforced. Counsel received the impression that the court sustained the objection made by the state. The court says he did not so intend his remarks, but expected the witness to be again called, when he would rule on whether or not he would be permitted to testify, after preliminary investigation. The witness did not testify, and was not again called. As during the trial no witness had testified about whether or not Thurman Davis had ever had sexual intercourse with Miss High-tower, and the witness’ testimony being on a most material issue in the case, it would have been error to have refused to permit him to testify. If he had heard witnesses testify in regard to what he would be called upon to testify in regard to, and his testimony be of a supporting nature, a different issue would be presented. But his testimony that he proposed to give was as to a new alleged fact, about which no witness had been questioned, and under the circumstances shown by this record, it is apparent that appellant was deprived of testimony material to his defense, as the court contends, through misapprehension of his counsel of the court’s ruling. The affidavit of the witness accompanies the record that he would have so testified had he been permitted to do so.

Again, attached to the motion for a new trial is the affidavit of Will McDonald that in the fall of 1912 he saw Miss Hightower and Clyde Anderson in a buggy together, going towards Miss Hightower’s home; that in a hollow near Jack Ferguson’s he saw them stop the buggy; that Miss Hightower was sitting' on the edge of the buggy seat with her legs spraddled apart, and Anderson was between her legs as if they were in the act of intercourse. Clyde Anderson testified on the trial to an act of sexual intercourse with Miss Hightower at this time and place. The state severely attacked his testimony, by offering testimony that Anderson had been paid $100 to so testify, and thus materially weakened his testimony. McDonald’s testimony would have supported Anderson’s testimony, and had a tendency to show that Miss Hightower was not a virtuous girl. Appellant shows he was not aware of the testimony of McDonald until after the trial, and McDonald says he told no one of what he had seen until after the trial.

Guy Barrett attaches an affidavit, in which he says he would have testified, if called as a witness, that he was with Miss Hightower at a picnic at Clearwater in 1912, and on the way home they went out into the bushes and engaged in an act of sexual intercourse. Such testimony as this one cannot ascertain unless it is voluntarily told. Appellant swears positively he was in possession of no information that would have put him on notice that McDonald and Barrett would have so testified.

The state offered rebuttal affidavits which would have a strong tendency to show that the testimony of Barrett and McDonald is unworthy of credit, and the court was authorized to take this into consideration in passing on the motion for new trial. But it strikes us, as appellant on the trial was deprived of the testimony of Leroy 'liavis, and these two new witnesses come forward now and say they would testify to facts which would support the defensive theory of appellant, that he should have been granted a new trial.

The sole issue, as made by appellant on the trial, was that Miss Hightower was not a virtuous female. All this testimony bears directly on that issue, and it is that character of testimony one would have no notice of until informed of it.

As before said, we do not think the other assignments present error, but, taking the view of this newly discovered testimony that we do, and that in this state the credit to be given a witness, and the weight to be given his testimony, is a question for the jury and not the court, we are of the opinion the court erred in not granting a new trial.

The judgment is reversed, and the cause remanded.

PRENDERGAST, P. J., dissents.
      <@=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    DICKIE v. STATE.
    (No. 3700.)
    (Court of Criminal Appeals of Texas.
    Oct. 20, 1915.)
    Assault and Battery <@=91 — Prosecution— Evidence.
    Evidence held to warrant a conviction of assault.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. § 136; Dec. Dig. <®=>91.]
    Appeal from Throckmorton County Court; B. F. Thorp, Judge.
    A. Dickie was convicted of simple assault, and he appeals.
    Affirmed.
    T. J. Wright, of Throckmorton, for appellant. C. 0. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of a simple assault,' and his punishment assessed at a fine of $5. There were no exceptions reserved to the introduction of testimony, and no exception reserved to the charge of the court as given. The only special charge requested was given. So the only question we can pass on is the sufficiency of the testimony.

Jim Woodard testified that appellant came to the farm where he was at work (he being a tenant of appellant) and began a conversation about some differences between them. After passing a few words, he says appellant said to him, “If you will come across the fence I will stamp hell out of you;’’ that he started, when appellant struck at him with a club about four feet long and as large as his arm. If the jury believed this state of facts, it constituted an assault. Of course, appellant’s testimony presents an entirely different state of case; but the defense’s issues were presented in language chosen by appellant, the court giving the special charge requested.

The judgment' is affirmed.


text:
    MUNOZ v. STATE.
    (No. 3710.)
    (Court of Criminal Appeals of Texas.
    Oct. 20, 1915.)
    1. Criminal Daw <©=>1054^-Appeal — Exceptions— Necessity.
    The court on appeal cannot review the admission of evidence, alleged as ground for a new trial, to which no exceptions were preserved on the trial below.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 2662-2664; Dec. Dig. <©=> 1054.]
    2. Criminal Daw ®=^762 — Trial—Instructions — Opinion of Court.
    An instruction that appellant “stands charged by indictment with the offense of the murder of S. G., alleged to have been committed by him,” does not suggest to the jury the opinion of the court that the defendant was guilty.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §S 1731. 1750, 1754, 1758, 1759, 1769; Dec. Dig. <®=762.]
    3.Criminal Daw <©=>1137 — Trial—Instructions — Invited Error.
    Where the court, on defendant’s request, charges that his failure to testify shall not be taken as a cix-cumstance against him, defendant cannot show error in the invited charge.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 3007-3010; Dec. Dig. <©=> 1137.]
    Appeal from District Court, Atascosa County; F. G. Chambliss, Judge.
    Romaldo Munoz was convicted of murder, and he appeals.
    Affirmed.
    C. O. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of murder, and his punishment assessed at 25 years’ confinement in the state penitentiary.

As there was no exception reserved to the introduction of the testimony of the witness John Slomschinskie, the complaint in regard to same, in the motion for new trial, does not present the matter in a way we can review the action of the court.

In the beginning paragraph of the charge of the court he. informed the jury that:

“Appellant stands charged by indictment with the offense of the murder of Sapriano Gonzales, alleged to have been committed by him.”

This does not suggest to the jury that in the opinion of the court appellant was guilty, as contended in the complaint, of the charge.

As appellant requested the court to instruct the jury that his failure to testify should not be taken as a circumstance against him, certainly the court so doing presents, no error.

The judgment is affirmed.


text:
    LUTTREDD v. STATE.
    (No. 3729.)
    (Court of Criminal Appeals of Texas.
    Oct. 20, 1915.)
    Intoxicating Diquors <©=236 — Prohibition Territory — Pursuing Occupation — Evidence.
    Evidence, on a prosecution for pursuing the business of selling intoxicating liquor in prohibition territory', held to support a conviction, especially when aided by plea of guilty.
    [Ed. Note. — For other cases, see Intoxicating Diqxxoi-s, Cent. Dig. §§ 300-322; Dec. Dig. <©=» 236.]
    Appeal from District Court, Damar County ; Ben H. Denton, Judge.
    Hugh Buttrell was convicted, and appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the-State.
   HARPER, J.

Appellant was convicted of the offense of pursuing the occupation of selling intoxicating liquors in prohibition territory. 1-Ie entered a plea of guilty, and asked that his sentence be suspended. The jury declined to do so, but on the other hand recommended it be not suspended. He appealed the case, and now insists the testimony is insufficient to support a verdict. Will Webb says he went to Dallas and brought back and delivered to appellant two cases of whisky, and a barrel of beer — $51 worth. Tiff Gordon also testifies to the same fact. W. A. Carey, M. A. Townsend, and others testify to purchasing beer and whisky from appellant at his cold drink stand. Deputy Sheriff Mitchell testifies to raiding appellant’s place of business and finding over 200 pints of whisky, 150 quarts of whisky, and a large amount of beer in bottles.

The evidence sujoports the verdict, especially when aided by the plea of guilty.

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


author: PRENDERGAST, P. J.

text:
    MILES v. STATE.
    (No. 3727.)
    (Court of Criminal Appeals of Texas.
    Oct. 20, 1915.)
    1. Weapons ®=»17 — Carrying Weapons— Prosecution — Instructions.
    Defendant, charged with carrying a pistol, produced evidence that the pistol was defective, and that it could not be fired, and requested an instruction that if the jury so believed, they should acquit him. The judge refused in any way to submit the issue thus made. Held, th'at the question was for the jury, and refusal to submit it to" the jury was error.
    (Ed. Note. — For other cases, see Weapons, Cent Dig. §§ 20, 22-33; Dec. Dig. <S=»17.]
    2. Weapons <@=38 — Carrying Pistols — Defective Pistol.
    It is not an offense to carry a pistol either so defectively manufactured or in such bad repair that it cannot be fired at all.
    [Ed. Note. — For other cases, see Weapons, Cent. Dig. § 7; Dec. Dig. <@=»8.j
    Appeal from Ellis County Court; W. M. Tidwell, Judge.
    Lee Miles was convicted of carrying a pistol, and appeals.
    Reversed and remanded.
    J. C. Lumpkins, of Waxahachie, for appellant. O. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of carrying a pistol, and fined $100. The testimony showed he carried, at the time alleged, what all the witnesses called a pistol, and so did he. He and other witnesses further testified that it would not shoot and could not be made to shoot, and that they had both before, and about the time he was charged with carrying it, and soon afterwards, tried time and again to shoot it, but it would not shoot and could not be made to shoot;' that the plunger was so short it would not strike the cap and explode the cartridge.

Appellant, in due time, prepared in writing and presented to the judge special charges, submitting to the jury, in effect, that if they believed from the evidence the pistol was so defective in the particular claimed that it could not be fired or discharged, and could not be used for the purpose for which pistols are manufactured and spld, to acquit him. The judge refused all his special charges submitting this issue, and expressly refused to submit that issue at all. Appellant timely excepted to the court’s charge and to the court’s refusal to give any of his said charges, by proper bills. It may be the judge did not believe appellant and his witnesses on this point, as the pistol was itself introduced in evidence, and it may be the jury also might not have believed them. However, we believe it was necessary for the court, by proper charge, to submit the question to the jury for them to decide it. 1-Ie could not do so himself, whatever his belief as to the facts.

Possibly this exact question has not been before decided by this court, but the decisions are that it is not an offense to carry a pistol if it is so out of repair that it cannot be fired at all, and this, ft seems, would include the fact, if so, that it was so defectively manufactured that it could not be fired at all. Cook v. State, 11 Tex. App. 19; Blackburn v. State, 58 Tex. Cr. R. 48, 124 S. W. 666; Farris v. State, 64 Tex. Cr. R. 530, 144 S. W. 249. Other cases are to the same effect. It was not held, nor intended to be held otherwise, in Steele v. State, 73 Tex. Cr. R. 352, 166 S. W. 511.

The judgment is reversed, and the cause remanded.


text:
    Ex parte LONG.
    (No. 3714.)
    (Court of Criminal Appeals of Texas.
    Oct. 13, 1915.
    Rehearing Denied Nov. 3, 1915.)
    1. Habeas Corpus <®=»85 — Proceedings—Necessity oe Evidence.
    No evidence being offered to sustain the allegations of applicant for writ of habeas corpus, it must be presumed that the judgment committing him for contempt was correct.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§ 77, 78; Dec. Dig. i@^85J
    2. Habeas Corpus ®=^>113 — Statement of Facts.
    A transcript of the stenographer’s notes attached to an application for writ of habeas corpus, not being agreed to by the attorneys nor approved by the- judge as a statement of facts, cannot be considered as such.
    (Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§ 102-115; Dec. Dig. <S=3ll3.J
    Original habeas corpus proceeding by W. J. Dong.
    Applicant remanded to custody.
    T. C. Hutchings, of Mt. Pleasant, for applicant. C. O. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

In vacation Dong applied to one of the judges of this court for a writ of habeas corpus, alleging that he was illegally restrained of his liberty, in that, in substance, the court required him, as a witness in the trial of a felony case against another, to answer certain questions “Yes” or “No,” when he claimed that he did not remember and could not so answer. The application was granted, and the cause set down for hearing by the court on the 6th inst. The sheriff, who had custody of Hong when the writ was granted, duly made his return thereon, showing that he held him in custody by virtue of a proper process and judgment of the district court of Titus county in three separate and distinct judgments at different times, copies of which judgments he attached, and which show that, in the trial of a felony case against Wert McGee in that court, Long was duly sworn as a witness for the state, and was properly asked by the state’s attorney if he had seen said McGee on the date that McGee was alleged to have sold him whisky; that he stated he did not remember, and then he was asked if he had bought any whisky from Wert McGee in said county on that date, and that he answered that he did not remember; that the jury was retired, and the court admonished him that he must answer the question “Yes” or “No,” and when the jury was brought back he was again asked the questions, and the court, in the judgment, stated:

“And the said witness refused to answer the said question and willfully evaded the same,” and “the court then and there heard other evidence as to the matter, and was and is now of the opinion that the said witness willfully and deliberately refused to answer the said questions, and was then and there and now is guilty of willful contempt of: court committed in the immediate presence of the court”

—and thereupon adjudged him guilty of contempt of court, and properly in the judgment ordered that he be punished therefor by confinement in the jail for three days and a fine of $100, and until he should pay the fine and costs.

No evidence whatever was offered or heard by this court to sustain applicant’s allegations for the writ of habeas corpus. It has been uniformly and many times held by this court that under the circumstances this court must presume, and will, and does, that the judgment of the lower court was correct. We cite only some of the cases. Ex parte Naill, 59 Tex. Cr. R. 140, 127 S. W. 1031; Ex parte Thomas, 65 Tex. Cr. R. 533, 145 S. W. 601; Ex parte Basham, 65 Tex. Cr. R. 537, 145 S. W. 619; Ex parte Northern, 63 Tex. Cr. R. 275, 140 S. W. 95.

There is attached to Long’s application for the writ of habeas corpus what purports to he a transcript of the stenographer’s notes of the testimony and the proceedings of the court at the respective times he was adjudged guilty of contempt and ordered confined and fined therein as stated. This stenographer’s transcript is in no way agreed to by any of the attorneys in the case, and is not approved in any way by the judge as a statement of facts in the matter. It cannot, therefore', be considered by us as such. However, we might say that we have read it, and, even if we could consider it, we think it does not sufficiently show that the orders of the judge were not authorized or wrong.

It is therefore ordered by this court that the said Long be remanded to the custody of the sheriff of Titus county, to be held by the sheriff in accordance with the several judgments of contempt against him.
      cg^sFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, J.

text:
    REYNA et al. v. STATE.
    (No. 3699.)
    (Court of Criminal Appeals of Texas.
    Oct. 20, 1915.)
    Laeceny <@=j55 — Prosecution — Evidence— SUFFICIENCY.
    In a prosecution for cattle theft, evidence held insufficient to show that defendants who participated in the butchering of the animal and the carrying away of the meat were guilty of theft.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 152, 164, 165, 167-169; Dec. Dig. 3^55.]
    Appeal from District Court, Cameron County; W. B. Hopkins, Judge.
    Luis Reyna and another were convicted of cattle theft, and they appeal.
    Reversed and remanded.
    Webster & Green and E. L. Kowalski, all of Brownsville, and Lyndsay D. Hawkins, of Austin, for appellants. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellants were convicted of cattle theft, the punishment of Luis Reyna' being assessed at three years’, and that of Nicario Reyna at four years’, confinement in the penitentiary.

The state’s case, on the point on which this appeal hinges, was made by the testimony of the witness O’Neal. He testified that the defendant Luis Reyna and his brother were working for him in his lettuce patch; that about 10 o’clock on the morning of the day of the alleged theft a Mexican named Herrera came by where they were at work driving a yearling, which is shown to be the one alleged to have been stolen, and that Luis Reyna went to the fence and had a short conversation with Herrera. That evening the two Reynas failed to return in accordance with what he said was their contract; at least Luis Reyna had the contract to haul lettuce for him to the depot; that he did not return, and that he, O’Neal, carried the lettuce himself. Subsequently, in walking across his lettuce patch or field, he discovered suspicious circumstances, and he went into the brush some distance away, and while he does not mention specifically these three parties, Herrera and the two Reynas, still the idea is conveyed he saw them doing things he did not understand exactly, and he phoned an officer at Brownsville, 'who came out. Investigating this matter, they found where this animal had been butchered, and later Nica-rio Reyna disclosed to the officers where the hide was buried, and he went with them and they unearthed the hide. It proved to be the hide of the animal that Herrera was driving in the morning. Appellant Luis Reyna had gone out there in his wagon, and after the animal was butchered the meat was put in his wagon and hauled to his house and put under his shed. This was covered by some grass and wood, and it was found in that condition in the wagon bed by the officer. The alleged owner Trevino testified he lived about 3% miles from O’Neal’s, and the butchering was about three-quarters of a mile still further on. Trevino is the alleged owner, and while the property did not belong to him, the evidence is that he had control and management of it, and the ownership, therefore, is sufficiently alleged.

Luis Reyna took the stand in his own behalf and testified in opposition to O’Neal’s testimony, stating he did not have a conversation with Herrera about the animal as detailed by O’Neal, and that he had no contract with Mr. O’Neal to haul lettuce for him, and that he worked for O’Neal until 12 or 12:30 o’clock and went home, and that evening he wanted some wood and went out to haul it; that in going along an old road he ascertained the fact that this animal was being butchered by his brother and Herrera, and he went where they were and inquired why they had killed the animal. He finally agreed he would take the meat home, which he did, by placing it in his wagon, and placing wood in the wagon over the meat and putting some grass on the wood. O’Neal testified that when he was going across his lettuce patch he heard this wagon and followed it, and that was the occasion of his ascertaining the fact that the animal was butchered. This testimony would seem to corroborate Luis Reyna that he was not present at the time of the beginning of the butchering of the animal; but, under the view we take of this record, this is not a very important fact, except, in a general way, that it goes to show that he was not connected with the original taking. This is the substance of the case.

The record has been read carefully to ascertain the fact if the two Reynas were connected with the original taking. If not, they could not be guilty of stealing this animal. After Herrera had taken the animal and their connection began with it after it had been driven the distance indicated, their subsequent connection with it would not make them guilty as principals. There must be evidence to connect them with the original taking in some way in order to constitute them the takers. If when Herrera took the animal he drove it as indicated by O’Neal, and the Reynas’ first intimation or knowledge of that fact was the conversation between Luis Reyna and Herrera, as indicated by O’Neal, that is not sufficient to show him. connected with the original taking. He might be guilty of recidving the stolen meat, if his first connection with the matter was where the animal was slaughtered and after it had been slaughtered. It may be that if he had an agreement with Herrera to help him slaughter the animal and went there for that purpose, he would be guilty of receiving the animal himself after it was stolen.

The court submitted the question alone of theft, giving a general formal charge on principals. A special charge was requested, to the effect that, unless defendants were connected with the original taking, they would not be guilty; that they might be guilty of receiving stolen property. The, language of the charge is not repeated, but this was the substance. The contention here is: First, the court should have charged the jury on circumstantial evidence; and, second, should have charged the jury, unless they were connected with the' original taking, they would not be guilty of theft, but might be guilty of receiving stolen property. There was no bill of exceptions reserved to any ruling of the court, nor was an exception reserved to the court’s charge, except in the motion for new trial. The writer is of opinion that it was fundamental error to submit to the jury the idea and theory of theft in this case under the facts, and in refusing to give the other charge. It is a fundamental error, that can be noticed on appeal, that a court authorizes a conviction on facts not shown by the witnesses. But be that as it may, the evidence is not sufficient to show appellants had any connection with the original taking. Herrera had evidently stolen the animal and driven-it from Trevino’s 3% miles, -and three-quarters of a mile further, where it was slaughtered, and that appellant at the time that the animal was taken, and for two hours or more after Herrera passed with the animal, was working for Mr. O’Neal. If the evidence is in doubt, it is better to charge accessory and receiving stolen property in different counts.

The evidence not being sufficient, it is ordered that this judgment be reversed, and the cause remanded.

HARPER and PRENDERGAST, JJ., agree that the evidence is not sufficient to convict of theft, but do not agree the charge is fundamentally erroneous.
      <@z3>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    ENGMAN v. STATE.
    (No. 3712.)
    (Court of Criminal Appeals of Texas.
    Oct. 20, 1915.)
    1. Intoxicating Liquors <@=^223 — Criminal Prosecutions — Admissibility of Evidence.
    On a trial for selling whisky in prohibition territory, the time and place where the prosecuting witness claimed to have bought the whis-ky from accused were directly in issue and properly shown.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 263-274; Dec. Dig. <§=> 223.]

      2.Intoxicating Liquors <§=>226 — Crim$$4l Prosecutions — Admissibility of Evidence.
    On a trial for selling whisky in prohibition territory, the state was properly permitted to prove, by a witness other than the witness to whom the sale was made, the location of a building in which accused had a room when the sale occurred, and that when he was in such room he noticed two beds, a washstand, and a center table therein; this evidently being for the purpose of identifying the room where the alleged sale occurred.
    [Ed. Note. — Eor other cases, see Intoxicating Liquors, Cent. Dig. §§ 263-274; Dec. Dig. <§= 22G.]
    Appeal from District Court, Potter County ; Hugh L. Umphres, Judge.
    Frank Engman was convicted of selling whisky in prohibition territory, and he appeals.
    Affirmed.
    Lumpkin & Harrington, of Amarillo, and Cooper & Merrill, of Houston, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted for selling whisky in prohibition territory, and his punishment assessed at the lowest prescribed by law. The evidence, while disputed, was amply sufficient to sustain the verdict. It showed a sale by appellant as alleged.

Appellant’s first bill of exceptions complains of some remarks by the judge to the jury, after delivering his written charge to them, giving them some directions. What the judge said to the jury was in no way prejudicial to appellant, and presents no error. Tyrone v. State, 180 S. W. 125, and authorities therein cited.

Appellant has a bill complaining that the court permitted the witness, to whom the indictment alleged appellant sold whisky to testify to other sales to him. The state objects to the bill as insufficient to require the court to pass upon the question. And it also contends that the testimony shown by the bill shows clearly that the witness did not testify to any other sale than that alleged in the indictment. We think both contentions by the state are well taken. The witness did not testify to any other sale to him by appellant, even if we could consider the bill.

The other bills are also objected to by the state as insufficient. Even if we could consider them, or any of them, they present no error. The question of the time said state’s witness claimed he purchased, and the location where he claimed he bought the whisky from appellant, was directly in issue and proper to be shown. The court permitted the state to prove by another witness the location of the building in which the appellant had a room when the sale occurred, and over his objection, permitted the witness to tell that he noticed two beds, a washstand, and center table in the room when he was in it. Evidently this was for the purpose of identifying the room where the alleged sale occurred. Under no circumstances would it be reversible error for the court to permit such evidence. There is nothing else raised requiring discussion.

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


text:
    CHAPMAN v. STATE.
    (No. 3728.)
    (Court of Criminal Appeals of Texas.
    Oct. 20, 1915.)
    1. Criminal Law <§=597 — Continuance-Right to Continuance.
    In a prosecution for bigamy, the defense was that accused’s first wife had informed him she had procured a divorce. At the time of the trial she was living in New Mexico, and after process was returned accused was unable to procure her deposition on interrogatories before trial. Another witness as to accused, being informed of the alleged divorce was also absent. The genuineness of a letter written by the first wife, informing accused of-the divorce, was attacked. Held that, as it was accused’s first application for a continuance, it should have been granted, even though lie was not diligent, particularly as the wife made affidavit to the genuineness of the letter, and jurors stated, had they believed it to be genuine, they would have acquitted.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1331, 1332; Dec. Dig. <§= 597.]
    2. Criminal-Law <§=957 — Trial—Verdict.
    A conviction cannot be impeached by affidavits of the jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2392-2395; Dec. Dig. <§= 957.]
    3. Criminal Law <§=596 — Continuance — Cumulative Evidence.
    The rule against cumulative evidence does not apply to a first application of accused for a continuance, not is it applied with strictness where the only witnesses on the part of accused present are nearly related to accused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1328-1330; Dec. Dig. <§= 590.]
    4. Bigamy <§=1 — Wiiat Constitutes.
    One who marries another under the honest belief that he has been divorced from his first wife is not guilty of bigamy.
    [Ed. Note. — For other cases, see Bigamy, Cent. Dig. §§ 1-15; Dec. Dig. <§=!.]
    Appeal from District Court, Lamar County; Ben H. Denton, Judge.
    Albert Chapman was convicted of bigamy, and he appeals.
    Reversed and remanded.
    Chas. Roach and Lattimore & Hutchison, all of Paris, and Ramsey, Black & Ramsey, of Austin, for appellant. C. C. McDonaLd, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

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

One of the serious questions, and perhaps the most serious question, in the case, was the action of the court with reference to the application for a continuance as originally presented, and a subsequent action in overruling the motion for new trial in connection with this application for continuance. The evidence shows that the defendant married Laura Purvis in 1903, and they had some children, and that they separated and were not living together for three years or more, and in 1911, in July, he married Miss Gray-son in Lamar county; the previous marriage to Miss Purvis having occurred in Erath •county. His application was based upon the absence of Roy Johnson and his former wife, Laura Chapman. The court evidently overruled the application on account of want of what he deemed sufficient diligence. The case went to trial. On the trial of the case it was testified that his former wife had written appellant’s mother to the effect that she had a divorce. It also developed that Roy Johnson had informed defendant that his wife had been divorced. He also himself introduced a letter, having taken the stand in his own behalf, from his first wife, Laura, informing him of the fact that she had obtained a divorce from him and the custody of the children. This letter was introduced and went before the jury as evidence. This letter was attacked, and it was sought to show it was a forgery, and there was testimony introduced to that effect by some of his relatives, especially a brother-in-law. The letter received by appellant was dated June 25, 1911, and is in the following language:

“Purvis, Texas, June 25, 1911.
“A. A. Chapman: I will write a few lines to let you know that the children are well and doing well, and I want to say that I have got my divorce from you, and you are no longer mine, so I will close. You write the children. Good bye. Laura Chapman.”

The affidavit filed by Laura Chapman is as follows:

“State of New Mexico, County of Roosevelt.
“Personally appeared before me, the undersigned authority, Laura Chapman, and, being sworn, deposes and says that: T was the wife of A. A. Chapman, and I wrote him a letter under date of June 25, 1911, while I was at Pu'rvis, Tex., and addressed same to him at Eastline, Tex., and in this letter I told him the following’: [Then, follows the letter .above copied.]”

This is sworn to by Laura Chapman on 27th day of April, 1915, before C. M. Compton, Jr., notary public in and for Roosevelt county, state of New Mexico. The following letter is also attached to the motion for new trial:

“Mr. Chas. Roach, Paris, Texas — Kind Sir: I will write you a few lines in regard to Alfred’s case. I had a letter from Mr. Lipscomb this morning, and will send all to you now. There isn’t but one thing I want to ask: I)id Alfred really marry anothe'r woman in Ft. Worth, or is it false? I think I should know the truth, and if I could see Alfred he would not hesitate to tell me. I have two lawyers here, two brothers, that will do all in their power-free gratis; so any time I or the Messrs. Compton can do anything, don’t hesitate to call on us, and any time I am needed on the stand and can possibly get there I will be there in person. I could do more there than I can here, and have wrote for more evidence in Stephenvillo, Tex. I guess I will get their evidence soon; Mr. Jim Sagesor and R. P. Ogen, a Baptist minister. I want to impeach my brothers and brother-in-law both, if possible. I was a slave for all the relations before I was married, and they wanted me to continue same, and Alfred objected; so they hate him, and it would be to the height of their ambition to pen him. They have even made those threats. They did not want me to marry Alfred; they said he was only a kid, and would not know how to take care of me. My father did not say one word, and was satisfied with my marriage; my brothers first raised a kick, and then Palmer, and then my mother thinks what the sons failed to know are marked out. Her and the six boys wore the pants, and dad is left out. Oh, that isn’t half I can tell; things that would make a jury flinch. He was not treated even as good as a good dog, much less a human. They disgusted him against me. I could see the change coming on every day I was with him; that is why I don’t blame him. I love Alfred just as well to-day as I did the day I was married to him. Tell him I say hello; to be good, fie is in my mind always. From Laura Chapman.”

The brother-in-law she mentioned testified that the letter was a forgery. Turney was related by marriage; Laura Chapman being his niece. Appellant’s brother-in-law was named Purvis, and he was a brother of Laura Chapmim, whose maiden name was Laura Purvis, and he testified that the letter introduced in evidence was not in her handwriting.

If it be conceded that the diligence was not sufficient, or in strict compliance with the law, it may be replied this is the first application for a continuance, and that his former wife, Laura, was living in New Mexico at the time, and that process was issued for her, it seems, and returned not found; at least, she was not obtained at the trial. After the conviction, communication was secured, and she made the affidavit that the letter introduced in evidence was genuine, and that she wrote it. In connection with that, this letter that she writes to appellant’s attorney, Mr. Roach, was introduced, showing that she communicated with the district attorney, Mr. Lipscomb, with reference to these matters. Several jurors filed affidavits that, if they had believed the letter introduced in evidence was genuine, they would have acquitted the appellant without hesitancy; hut, in view of the fact that some of the evidence showed it was not in her handwriting and a forgery, this decided the case against appellant. These affidavits of jurors cannot impeach their verdict, and are mentioned in a general statement of the motion for new trial.

Believing that his wife was at Portales, N. M., appellant prepared interrogatories to send out to take her depositions. These were filed, but not in time to secure her testimony. Process was issued for Roy Johnson as well, and he was not obtained. As before stated, diligence is not always the controlling criterion of first application for continuance. A fair trial of the innocence or guilt of the. party is guaranteed, and ought to be guaranteed, by the laws of Texas, and even if diligence is not sufficient, if upon motion for new trial it is shown that the absent evidence is true and material, a new trial should be awarded. The affidavit of his wife shows that the letter was not a forgery; that she in fact did write the letter. It may be stated in this connection that the divorce had not been granted at the time she wrote. Subsequently she did obtain a divorce; but it had not been obtained at the time she wrote the letter to her husband.

The rule of cumulative evidence, which seems to have entered somewhat into the trial of the case below, from the viewpoint of this record, does not obtain in applications for first continuance. It is only on second and subsequent applications that the rule of cumulative evidence finds a place in our criminal practice and procedure. There is another rule that this court has followed ; that is, where the defendant is relying upon himself or his immediate relatives, that the rule with reference to cumulative testimony is not regarded with that strictness that it would be if the witnesses who testified are in no wise related to him. This is based upon the theory that his mother, who testified for him in this case, had received a letter also from her daughter-in-law to the effect that she was divorced, and that defendant himself would be much more interested in the result of the trial than others, and perhaps to the extent that their testimony should be more closely scrutinized. The inducement under such circumstances would be stronger to prevaricate than to state the truth. In view of the affidavit and statements in the letter to Mr. Roach by Laura Chapman of the genuineness of the letter, and that it was not a forgery, and in view of the whole record and the situation of this ease as presented, both before the jury and in the record before this court, entitles this appellant to another trial. If Laura Chapman should take the stand and testify, as she has sworn she would, that she wrote that letter, and it was not a forgery; if the jurors who filed affidavits in the case are worthy of credit, and there is nothing to indicate that they are not first-class citizens, appellant would be acquitted.

If he believed at the time that he married the second time that he was divorced from his first wife, he had a right to marry. If the divorce had actually occurred prior to the time of his marriage, of course, there would be no objection to his second marriage. If he believed it, and was laboring under such mistake of fact as to induce him to believe he was a divorced man, he still would not be guilty, and the verdict of the jury should have been in his favor. Laura Chapman’s testimony, if in accordance with her affidavit, ought to settle that question, and it seems the jury settled it against defendant because of the fact that his brother-in-law had sworn that the let-, ter was not in the handwriting of his sister. We believe this record presents itself in such shape appellant has not had a fair trial that he ought to have had, and under this showing he is entitled to another hearing, and it ought to be and is awarded him..

The judgment is reversed, and the cause remanded.

PRENDERGAST, P. J. I agree to a reversal, because I think, under the circumstances, a new trial should have been granted; but I do not agree to all that is said in the opinion.
      <g=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    TINKER v. STATE.
    (No. 3676.)
    (Court of Criminal Appeals of Texas.
    Oct. 13, 1915.
    Rehearing Denied Nov. 3, 1915.)
    1. Indictment and Information <@=>110 — Requisites — Sufficiency.
    An indictment alleging, in substance, that the defendant, “on or about the 18th day of October, one thousand nine hundred and thirteen, and anterior to the presentment of this indictment, in the county of Scurry and state of Texas, did then and there unlawfully and willfully set fire to and burn the house of Oz Smith, there situate,” follows Pen. Code 1911, art. 1200 et seq. defining the offense of arson, and is sufficient in law, sufficiently describes the burned house, and gives specific notice of the offense charged.
    [Ed. Note. — For other eases, see Indictment and Information, Cent. Dig. §§ 289-294; Dec. Dig. <@o=110.]
    2. Criminal Law <@=>1091 — Appeal—Matters Reviewable — Exceptions.
    Under White’s Ann. Code Cr. Proc. § 857, requiring bills of exceptions to be full and explicit, and section 1123, providing that no resort to inference to discover their meaning can be had, a bill of exceptions showing merely the substance of the evidence objected to and failing to show when the objection was made or what the other evidence was is insufficient.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. <@=>1091.]
    3. Arson <@=30 — Trial — Identification of Property — Sufficiency.
    The title of burned property is never in issue in arson and may be shown by oral evidence; absolute proof by deed not being essential.
    [Ed. Note. — For other cases, see Arson, Cent. Dig. § 61; Dec. Dig. <@=>30.]
    4. Criminal Law <@=>1169 — Appeal—Matters Reviewable — Harmless Error.
    Although it is error to admit oral evidence that a certain person insured burned property, and at the same time exclude the policy of insurance in showing ownership, the error is harmless, and is not a cause for reversal, especially where other evidence showed ownership.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. <@=>1169.]
    5. Criminal Law <@=>676 — Trial — Cumulative Evidence.
    Where a given fact is sufficiently shown by a number of witnesses, it is not error to exclude testimony of another witness which is merely cumulative.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1608; Dec. Dig. <@=>676.]

      6. Arson <§=>25 — Evidence—Admissibility.
    It is not error in a prosecution for arson to exclude copies of deeds tending to show title of the burned property in another than the person •named in the indictment, where it is not claimed that possession or claim of possession by another can be shown; possession being a criterion as to certainty of description.
    [Ed. Note. — Eor other cases, see Arson, Cent. Dig. §§ 52-54; Dec. Dig. <§=>25.]
    7. Indictment -and Information <@=>133 — Sufficiency.
    An indictment cannot be shown to be defective by evidence, but is tested as a pleading under the law applicable.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 454-468; Dec. Dig. <§=>133.]
    8. Criminal Law <§=>1091 — Appeal and Error — Bill of Exceptions — Conclusions.
    A bill of exceptions to the conduct of a prosecuting attorney which states only appellant’s conclusions, and not facts, does not show reversible error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. <§=>1091.]
    9. Criminal Law <§=>1159 — Appeal and Error-Matters Reviewable.
    Where there is a conflict in the evidence, but the evidence will sustain the verdict as rendered, the court on appeal will not set the verdict aside.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3074-3083; Dec. Dig. <§=> 1159.]
    Appeal from District Court, Scurry County ; John B. Thomas, Judge.
    A. E. Tinker was convicted of arson, and he appeals.
    Affirmed.
    Smith & Spiller, of Snyder, for appellant.. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of arson, and his punishment assessed at the lowest prescribed by law.

With the necessary beginning and ending allegations, the indictment averred:

“That A. E. Tinker, on or about the 18th day of October, one thousand nine hundred and thirteen, and anterior to the presentment of this indictment, in the county of Scurry and state of Texas, did then and there unlawfully and willfully set fire to and burn the house of Oz Smith, there situated.”

It follows the statute (P. C. art. 1200 et seq.) prescribing the offense and the approved form (Willson’s Forms [4th Ed.] p. 278), and is clearly sufficient against all of appellant’s objections to the effect: (1) The indictment was insufficient in law; (2) it did not sufficiently describe the burned house; (3)it did not give him specific notice of the crime charged; and (4) that the description of the burned property is vague and uncertain.

He has some bills of exceptions to the admission and exclusion of evidence. His first, on this subject merely states that on the trial “the state introduced the following testimony, to wit: That a gin was burned in the town of Snyder, Scurry county, Tex., on or about the 18th day of October, 1913, and that the said gin belonged to Oz Smith,” and that he objected for the same reason he gave in his motion to quash the indictment. What witness so testified, or what other evidence was introduced, is not stated. Unquestionably under the rules (section 857, p. 557, and section 1123, p. 732, White’s Ann. C. C. P.; James v. State, 63 Tex. Cr. R. 75, 138 S. W. 612; Ortiz v. State, 151 S. W. 1058; Best v. State, 164 S. W. 997; Arnold v. State, 168 S. W. 125) this bill cannot properly be considered. However, there is no doubt that such evidence was admissible. It has always been held in this state that the title to the burned property in this offense is never in issue, and that it is not essential that any deed to the alleged owner be introduced in evidence, but that oral evidence of the possession and ownership is always admissible. Allen v. State, 62 Tex. Cr. R. 506, 137 S. W. 1133, and eases there cited. See, also, section 1335, White’s Ann. P. C. 1901, p. 522.

Mr. McConnell, a local insurance agent, testified, in effect, that Oz Smith, the alleged owner of the burned gin, insured it. Appellant objected to this evidence because said Smith had other houses, and the indictment did not aver the burned house was a gin, and the insurance policy was the best evidence. The court did not permit any evidence of the contents of the policy. This evidence was admissible just like any other fact would be which showed said Smith' owned, claimed, or was in possession of the gin. Besides, said 'Smith himself, without any objection by appellant, testified fully the same thing. This court, in Wagner v. State, 53 Tex. Cr. R. 307, 109 S. W. 169, said:

“It is well settled in this state that the erroneous admission of testimony is not cause for reversal if the same fact is proven by other testimony not objected to” — citing many cases.

See, also, Bailey v. State, 69 Tex. Cr. R. 484, 150 S. W. 915, and Christie v. State, 69 Tex. Cr. R. 602, 155 S. W. 541. Again, the uncontroverted testimony of a large number of witnesses, including that of appellant himself, established that said Smith’s said gin was burned on the night of October 18, 1913. Every witness identified the burned gin as that of said Smith. Appellant cites us to some arson cases where it seems to have been held that it was necessary to introduce the insurance policy to show that the burned house was insured, but those cases are not in point, for they were where the owner was indicted for burning his own insured house.

Appellant also objected because he claims the court would not permit him to introduce testimony that a certain brand of whisky came from Lit Chapman, an important state witness, and that he only handled that brand. The court refers to the statement of facts, which shows that a great deal of testimony was introduced by various witnesses to that effect.

Appellant has another bill complaining that the court erred in refusing to permit him to introduce in evidence copies of three deeds from Leroy Johnson, all conveying the said gin property to three distinct persons, “one conveying the property before it was conveyed to Oz Smith, another conveying the property to Oz Smith, and another a sheriff’s deed conveying the property as that of Leroy Johnson to Continental Gin Company, after the date of the deed to Smith,” claiming, “These deeds show that the property was evidently in controversy.” The court qualified the bill as follows:

“The defendant offered some deeds which were refused by the court, as the court could not inquire into exact title to the property; the state having proved by a deed that Smith claimed the property and was claiming the property at the time it burned.”

This is the full bill, without quoting it. The bill in no way pretends to claim that he would or could introduce any evidence whatever to show, or tend to show, that any person whomsoever, other than said Smith, set up any claim whatever to said property, or was in possession thereof, or claimed possession of it, or that any other, except said Smith, owned it. But the testimony, and all of it, without any contradiction whatever, overwhelmingly established that said Smith alone owned said gin, and had for a number of years. He alone had run it in previous years during the ginning season, and repaired it to run for 1914, but had run it partly ginning one bale during that season before it was burned. We think this bill shows no error. Even if said copies of deeds, as claimed by appellant, could have been held to show that “the property was in controversy,” that would not have made them admissible, without showing that some one other than said Smith was in possession, or at least claimed possession, and there is not even such pretense by the bill or otherwise in this record. The title to the property is not, and was not, an issue. Allen v. State, supra.

The indictment could not be shown to be defective by evidence that said Smith owned other houses than said gin, and at some other time he had had houses burned.

“The indictment * * * must be tested by itself under the law, as a pleading. It can neither be supported nor defeated as such by what evidence is introduced on the trial.” Ritter v. State, 176 S. W. 730.

By other bills appellant complains of the manners and attitude of the district attorney in cross-examining a witness. These are very general, and, as stated by the court, are appellant’s mere conclusions, and not approved in the bill as facts. They point out no reversible error.

No other questions are raised requiring discussion. We have carefully studied the statement of facts. There was conflict in the evidence. But the testimony of the state, if believed by the jury, as it evidently was, was amply sufficient to sustain the verdict. That it may have authorized his acquittal, if the jury had believed him and his witnesses, would not authorize or justify this court to set the verdict aside.

The judgment is affirmed.
      @=>For other eases 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


text:
    VINSON v. STATE
    (No. 3719.)
    (Court of Criminal Appeals of Texas.
    Oct. 20, 1915.)
    1. Criminal Law <@=j1064 — Appeai^-Reser-vation of Grounds of Review — Motion for New Trial.
    It is the rule in all the appellate courts of this state that all grounds relied on to present error must be contained in the motion for a new trial filed in the court below, or in bills of exceptions filed in that court, especially in view of rule 101a for district and county courts (159 S. W. xi), providing that all errors not directly specified in the motion for a new trial shall he waived.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2676-2684; Dec. Dig. <&=» 1064.]
    2. Courts <®=>78 — Rules of Court — Force.
    The Constitution and laws authorize the Supreme Court to adopt rules for the government of all the courts of the state, and such rules govern when not in conflict with some statutory provision.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 274, 276-281; Dec. Dig.
    3. Criminal Law <§=»1038 — Appeal—Reservation of Grounds of Review — Objections and Exceptions.
    The statute requiring the charge to be submitted to counsel, and requiring counsel to direct the attention of the court to any portion of the charge objected to, or to the failure of the charge to present any issue fully or correctly, or its failure to present all the issues raised by the evidence, prescribes a rule which the Legislature had a right to prescribe, and appellate courts can neither ignore nor emasculate such provision.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2646; Dec. Dig. <@=vl038.]
    4. Criminal Law Appeal — Record —Assignments of Error.
    Assignments of error, filed in vacation, have no place in a transcript in a criminal case, as the motion for a new trial alone will be looked to.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2954-2964; Dec. Dig. 1129.)
    5. Criminal Law <®^1064L-Appeal — Reservation of Grounds of Review — Motion for New Trial.
    A ground in a motion for a new trial, alleging that the court erred in its charge to the jury, but not attempting to point out any error, is too general to receive consideration.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2676-2684; Dec. Dig. 1064.]
    6. Witnesses <@^>286 — Examination — Redi rect Examination.
    AVhere, on a trial for assault to murder, a witness, who claimed that he, and not accused, cut the prosecuting witness, stated on eross-ex-animation that that was the first time he had so testified, that he was a witness before the grand jury, that he was not asked whether or not be cut the prosecuting witness, and that at that time he said nothing about it, as he did not desire to incriminate himself, a question on redirect examination as to whether he had ever before testified on oath about who cut the prosecuting witness was wholly immaterial, as he had made it plain in his testimony that he had never stated who cut the prosecuting witness before testifying on the trial.
    [I5d. Note. — For other cases, see Witnesses, Cent. Dig. §§ 930, 994-999; Dec. Dig. @=>286.]
    7. Criminal Law @=>683 — Evidence—Rebuttal.
    Where, on a trial for assault to murder, a witness who testified that he, and not accused, assaulted N., the prosecuting witness, testified that he did not know what kind of clothes N. had on, or what kind of a coat, that he had on dark clothes, but he did not know whether they were black or not, or whether N. had a lantern in his hand or not, it was permissible to allow N. to testify in rebuttal that he had a lantern in his hand, and that he had on no coat, but was dressed in a pair of blue pants and a corduroy vest.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 1615-1617; Dec. Dig. @=> 683.]
    8. Criminal Law @=>1038 — Appeal—Reservation op Grounds of Review — Objections and Exceptions.
    Under Code Or. Proc. art. 743, providing that, when the requirements of the eight preceding articles have been disregarded, the judgment shall not be reversed, unless the error was calculated to injure defendant’s rights, which error shall be excepted to at the time of the trial, or on a motion for a new trial, where the charge presented defendant’s contention made on the trial of the case, and defendant neither complained thereof at the time, nor requested any special charges, he could not afterwards complain of its failure to present a different contention.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2646; Dec. Dig. @=>1038.]
    Appeal from District Court, Grayson County; M. H. Garnett, Judge.
    Dick Vinson was convicted of assault to murder, and he appeals.
    Affirmed.
    H. P. Abney, B. W. Cornelius, and Head, Dillard, Smith, Maxey & Head, all of Sherman, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of assault to murder, and his punishment assessed at two years’ confinement in the state penitentiary.

The term of court at which appellant was tried adjourned on the 15th day of May, 1915. Two months thereafter, July 15, 1915, in vacation, appellant filed what are termed “assignments of error,” and in which he complains of the charge of the court as given, for the first time. On the trial of the case no special charges were requested, and no exception reserved to the charge of the court. In the motion for a new trial there is no attempt made to. point oiit any error in the charge, but in the “assignments of error,” filed after the court had adjourned, several paragraphs of the charge are alleged to be erroneous, and the brief filed in this cause by able counsel deals almost exclusively with what they claim in the assignments of error to be errors in the charge of the court, but which were not complained of in the motion for a new trial. Why is a motion for a new trial required to be filed? It is to enable the trial court to correct his own errors, if errors there be, in the trial of the case, and it is not fair to the trial court to seek to present error in the record to this court to which his attention was not called. It is the rule in this state in all the appellate courts now that all grounds relied on to present error must be contained in the motion for a new trial filed in the court below. The rules adopted by the Supreme Court now provide:

“All errors not directly specified in the motion for a new trial shall be waived.” Rule 101a (159 S. W. xi).

The Constitution and laws of this state authorize the Supreme Court to adopt rules for the government of all the courts in this state, and such rules govern, when not in conflict with some statutory provision. Of course, it is provided that fundamental error may be presented at any time. But in the brief no fundamental error in the proceedings is pointed out. The indictment charges the offense of which appellant was convicted. The charge of the court submits this offense to the jury, and while it may not have submitted all the issues made by the testimony in a manner entirely satisfactory to appellant at this time, apparently it did so at the time of the trial, for no complaint was then made, and no special charges were requested.

In Ross v. State, 170 S. W. 305, we had occasion to review the decisions of our appellate courts since the Legislature has seen proper to provide that the charge of the court must be submitted to counsel before being read to the jury, and if counsel object to any portion thereof, or do not think it presents any issue fully or correctly, or does not present all the issues raised by the evidence, it shall be the duty of counsel to at that time, in writing, direct the attention of the court to such error of omission or commission. This rule the Legislature had the right to prescribe, and if it is thought not to be in the interest of justice, application should be made to the Legislature to change it, and not expect the appellate courts to ignore or emasculate this legislative provision. Assignments of error, filed in vacation, have no place in a transcript in a criminal case. The motion for a new trial is what we look to, and that alone. Harvey v. State, 57 Tex. Cr. R. 7, 121 S. W. 605; Jones v. State, 55 Tex. Cr. R. 207, 116 S. W. 1147; Veas v. State, 55 Tex. Cr. R. 125, 114 S. W. 830; Sue v. State, 52 Tex. Cr. R. 122, 105 S. W. 804. In Sue v. State this court said:

“We wish * * * to again repeat, what we have frequently said, that it is a useless eon-sumption of paper and an unnecessary incum-brance of the record to put an assignment of errors in a record sent to this court. Article 723 of the Code of Criminal Procedure limits our consideration to assignments in the motion for a new trial and to bills of exceptions. We cannot take cognizance of any assignment of errors that is not thus placed in the record. Therefore we again urge the bar of Texas not to incumber the records sent to this court with any more assignments of errors. No complaint of the charge of the court, or ruling of the court, can be considered by us, unless said complaint is embodied either in a motion for a new trial or in a bill of exceptions.”

Thus it is seen we must and .can consider only such matters as are complained of in the motion for a new trial and bills of exceptions filed in the court below. In the motion for a new trial, the first complaint is: “The court erred in its charge to the jury.” That is all of the ground; no error is attempted to be pointed out to the trial court, and under all the decisions of this court, the Supreme Court, and the Court of Civil Appeals, this is too general an allegation to receive consideration. The rules also provide that such an assignment shall not be considered.

The next three grounds assert that the evidence is insufficient to sustain the verdict. The evidence offered in behalf of the state would show, if believed, that appellant, in the nighttime, slipped up behind H. C. Nelms and inflicted an almost fatal wound. AVithout going into details, we hold the state’s evidence fully supports the verdict, and would sustain a much more severe penalty than was assessed.

The only other ground in the motion for a new trial alleges:

“The court erred in the admission of evidence upon the trial hereof, to which appellant at the time duly excepted, as is shown by the several bills of exceptions filed herein and constituting a part of the record.”

To say the least, this is a rather general assignment, for no bills of exception had been filed at that time, and the two found in the record were not filed until some six weeks after the motion for new trial had been overruled and court had adjourned for the term. One of them refers to testimony excluded, and not to testimony admitted, on the trial. On the'trial of this case Meek testified that he, and not appellant, was the person who cut Nelms. On cross-examination he was asked if this was not the first time he had so testified, and he answered that it was. He was asked if he was not a witness before the grand jury, and he answered that he was, and said that he was not asked about whether or not he cut Nelms; that he did not at that time say anything about it, as he did not desire to incriminate himself. On redirect examination, he was asked if he had ever before this time, on oath, testified about who cut Nelms. As the witness had made it plain in his testimony that he had never stated who cut Nelms before testifying on this trial, the fact he had never before been called on to swear in regard thereto would be wholly immaterial.

The only other bill of exceptions in the •record claims the court erred in permitting H. O. Nelms to be recalled as a witness and testify that on the night he was cut he “wore a pair of blue pants and corduroy vest.” Meek, the witness who on this trial claimed he was the man who cut Nelms, testified:

“I do not know what kind of clothes he had on. I do not know what kind of coat. He had on dark clothes. I do not know whether they were black or not. Don’t know whether he had a lantern in his hand or not.”

In rebuttal of this testimony it was permissible to allow Nelms to testify that he had a lantern in his hand, and state he had on no coat, and was dressed in a pair of blue pants and a corduroy vest.

As before said, the court’s charge may not have been framed to present all the issues, as appellant, after adjournment, has concluded he would like to have had them presented. On the trial of the case, he seemed to have contended that, if Meek cut Nelms, he should be acquitted, and the court instructed the jury:

“If you should believe from the evidence that there was a sudden fuss between the train crew of which H. O. Nelms was a party and certain persons at AVhitesboro on the occasion in question, and that there was no previous understanding or agreement between the defendant and Bill Meek to engage in such fuss with the train crew, and that during the difficulty Bill Meek cut the said Nelms with a knife, or if you have a reasonable doubt as to this matter, you should find the defendant not guilty.”

This seems to have presented the issue as contended for on the trial of the case, and article 743 was amended for the specific purpose of preventing a different contention being made after the trial to that made on the trial. If appellant could now, at this late day, complain of the charge, we are frank to say that the court should have instructed the jury that if Nelms struck Meek with a pick, and it reasonably appeared to appellant that Meek’s life was in danger, or it appeared to him that Meek was in danger of suffering serious bodily injury at the hands of Nelms, he would have the right to use all necessary force to prevent such an assault. But appellant made no such contention at the time of the trial. I-lis whole theory then was that he did not cut Nelms, that Meek did cut him under circumstances for which he could in no way be held responsible, and this contention was submitted to the jury in a way that was satisfactory to appellant -and his counsel at that time.

The judgment is affirmed.
      <gs»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: RICE, J.

text:
    WILKERSON et al. v. STASNEY & HOLUB.
    (No. 6578.)
    (Court of Civil Appeals of Texas. Austin.
    Oct. 13, 1915.)
    Appeal and Error <S==>282 — Reservation op Grounds op Review — Motion por New Trial.
    Under District court rule 71a (145 S'. W. vii), providing that a motion for a new trial shall be filed in all cases where parties desire to appeal from a judgment or sue out a writ of error unless the error complained of is fundamental, except in such cases as the statute does not require a motion for a new trial, and Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1612, providing that appellant or plaintiff in error shall file with the clerk of the court below all assignments of error, provided that, where a motion for a new trial has been filed, the_ assignments therein shall constitute the assignments of error, and need not be repeated, and article 1991, providing that it shall be sufficient for the party excepting to the conclusions of law or judgment of the court to cause it to be noted on the record in the judgment entered that he excepts thereto, and that such a party may appeal or take a writ of error without a statement of facts or further exceptions in the transcript, a party may appeal and file assignments of error without a motion for a new trial where a case has been tried by the court without a jury and conclusions of fact and law filed, and the judgment has been duly excepted to.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1662-1065; Dec. Dig. &wkey;> 282.]
    Appeal from Williamson County Court; Richard Critz, Judge.
    Action between A. E. Wilkerson and others and Stasney & Holub. From the judgment, Wilkerson and others appeal. On motion to strike out the assignments of error.
    Motion overruled.
    W. A. Barlow, of Taylor, for the motion.
   RICE, J.

This case was tried before the court without a jury, and judgment rendered therein against appellants on the 12th day of April, 1915, from which judgment they have perfected this appeal. Appellees have filed their motion to strike out the assignments of error herein filed on behalf of appellants, on the ground that no motion for new trial was made in the court below, predicating their right so to do on district court rule 71a (145 S. W. vii), which reads as follows:

“A motion for new trial shall be filed in all cases where parties desire to appeal from the judgment of the trial court, or sue out a writ of error in the cause, unless the error complained of is fundamental, except in such cases as the statute does not require a motion for a new trial.”

If in certain cases the statute does not require a motion for new trial to be filed in the court below as a prerequisite for an appeal, and this case falls within that class, then appellees’ insistence is not well taken.

Appellants contend that in all cases tried before the court without a jury, where the judgment rendered is excepted to, and conclusions of fact and law are filed, the appellant has the right to appeal without filing a motion for a new trial. We think this position is well taken. By article 1612, Vernon’s Sayles’ Rev. Civ. St., the appellant ’ is required to file with the clerk of the court below his assignments of error upon which he relies for a reversal, before he takes out the transcript, provided that, where a motion for new trial has been filed, the assignments therein shall constitute the assignments of error, and need not be repeated by the filing of assignments; thus contemplating that in some cases such assignments might be filed in the court below without filing a motion for new trial. Article 1991, Id., reads thus:

“It shall be sufficient for the party, excepting to the conclusions of law or judgment of the court, to cause it to be noted on the record in the judgment entry that he excepts thereto; and such party may thereupon take his appeal or writ of error without a statement of facts or further exceptions in the transcript; but the transcript shall in such eases contain the special verdict or conclusions of law and fact aforesaid, and the judgment rendered thereon.”

These two statutes have been construed by several of the Courts of Civil Appeals as allowing the right of appeal on the part of the appellant, in the absence of a motion for a new trial, where, as in the instant ease, the trial was before the court without a jury, and conclusions of fact and law had been filed which were duly excepted to, as required by statute. See American, Rio Grande Land & Irrigation Co. v. Mercedes Plantation Co., 155 S. W. 286; Pollard v. Allen & Sims, 171 S. W. 302; Cornelius v. Harris, 163 S. W. 346; Cooney v. Dandridge, 158 S. W. 177, 178; Moore v. Rabb, 159 S. W. 85; Dees v. Thompson, 166 S. W. 56; Commonwealth Bonding & Casualty Co. v. Cator, 175 S. W. 1074. In Dees v. Thompson, supra, it is held that Acts 33d Leg. c. 136 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1612), making assignments of error in motions for new trial the assignments on appeal, did not change the rule that no motion for new trial need be filed in cases tried by the court without a jury, in which findings of fact and conclusions of law were filed and excepted to. The only case cited by appellees sustaining their contention is that of Head v. Altman, 159 S. W. 135, which is in conflict with the cases above cited, in which Mr. Justice Connor, in support of his views, cites Davidson v. Patton, 149 S. W. 757, Nunn v. Veal, 149 S. W. 758, and Murphy v. Earl, 150 S. W. 486, the first two of which were decided by the Court of Civil Appeals of the Amarillo District, and the last by the El Paso court. Ih Nunn v. Veal and Murphy v. Earl there were jury trials, and in Davidson v. Patton the record does not disclose whether tried by the court or with a jury; but said courts have since said time reversed their holdings in this respect. See Dees v. Thompson, supra, and other cases above cited.

Prior to the promulgation of the rule relied upon and Courts of Civil Appeals rules Nos. 23 and 24 (142 S. W. xii) the Supreme Court of this state and the Courts of Civil Appeals uniformly held that a party appealing from a judgment by the court without a jury had the right to appeal without filing a motion for a new trial. Bell County v. Alexander, 22 Tex. 357, 73 Am. Dec. 268, Buther v. Western Union Tel. Co., 25 Tex. Civ. App. 31, 60 S. W. 1029, and Greer v. Featherston, 95 Tex. 654, 69 S. W. 69.

Mr. Justice Brown, in the case of M., K. & T. Ry. Co. v. Beasley, 155 S. W. 183 et seq., in passing upon a somewhat similar question to the one here involved, held that the Supreme Court could not by rule set aside a statute, and that the rules of court must be so construed as to harmonize with the articles of tlie Revised Statutes, and with the former decisions of that court. We therefore have no hesitation in holding that the rules relied upon by appellees will not warrant us in sustaining their contention; but, on the contrary, we hold that, where the case has been tried before the court without a jury, and conclusions of fact and law have been filed by the trial court, and the judgment duly excepted to, as in the instant case, that the appellant has the right to appeal and file assignments of error without a motion for a new trial, and therefore we overrule appellees’ motion to strike out appellants’ assignments of error.

Motion overruled.
      <§a»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: JENKINS, J.

text:
    MOODY v. BONHAM et al.
    (No. 5508.)
    (Court of Civil Appeals of Texas. Austin.
    Oct. 13, 1915.)
    Appeal from District Court, Freestone County; H. B. Daviss, Judge.
    On motion for additional findings of fact. Findings made.
    For opinion, see 178 S. W. 1020.
    Anderson & Moses, of Fairfield, for appellant. M. L. Bonham, of Anderson, S. C., W. W. Ballew, of Corsicana, and T. H. Bonner and Boyd, Bell & Fryer, all of Fairfield, for appellees.
   Additional Findings of Fact on Motion for Same.

JENKINS, J.

The appellant having complained that our findings of fact herein are not sufficiently full, we make the following additional findings of fact:

I. James B. Bonham was killed at the Alamo in 1836.

II. The record in this case indicates that his estate was administered upon and his land was partitioned among his heirs, from which we infer that his headright certificate was located and patented. When and where this administration was had the record does not disclose.

III. On August 13, 1859, M. M. Bonham, acting for himself and the other heirs of James B. Bonham, through his attorney, James C. Walker, petitioned the Court of Claims to issue to said heirs the donation certificate to which they were entitled as such heirs.

IV. On October 15, 1859, said certificate No. 37 was issued to said heirs.

V. M. M. Bonham filed his petition to the probate court of Freestone county to the September term, 1859, of said court, to be appointed administrator of the estate of James B. Bonham. This petition was signed by “Walker & Bradley, Attys., per L. D. Bradley.”

VI. At the October term,' 1859, of said court, letters of administration were issued to said M. M. Bonham.

VII. September term, 1860, M. M. Bonham filed a petition for the sale of said certificate, alleging claims against said estate, aggregating $453.76, of which $198.56 was alleged to be due said M. M. Bonham. This petition was signed by Walker & Bradley, Attorneys.

VIII. On September 24, 1860, said probate court ordered M. M. Bonham to sell said certificate to the highest bidder for cash.

IX. At the November term, I860, said administrator reported that he had sold said certificate, as ordered by the court, to B. D. Bradley at 41 cents per acre.

X. On November 6, 1860, M. M. Bonham, administrator, deeded said certificate to B. D. Bradley. This deed was recorded May 5, 1882.

XI. At the December term, 1860, of said court, said sale was approved.

XII. On September 9, 1861, S. O. Simmons, E. Steele, and B. D. Bradley entered into a written agreement with each other, which recited among other things:

“That heretofore, in the year 1860, the said parties entered into a copartnership for the purpose of purchasing and locating land certificates, under which copartnership they have purchased and located the following certificates.”

Among others is mentioned:

“453% acres by virtue of James B. Bonham’s donation certificate No. 37 for 640 acres; 186% acres by virtue of James B. Bonham’s donation certificate No. 37.”

This agreement further states that said Bonham certificate had been paid for by B. D. Bradley, and that other certificates therein mentioned had been paid for by the other parties, but that they were to pay the same amount and be equal partners in said lands.

XIII. On May 30, 1862, the land in controversy was patented to the heirs of James B. Bonham by virtue of said donation certificate.

XIV. The parties hereto filed a written agreement, as shown by our original findings of fact herein.


text:
    NATIONAL LIVE STOCK INS. CO. v. GOMILLION.
    (No. 5482.)
    (Court of Civil Appeals of Texas. Austin.
    Oct. 13, 1915.)
    Courts &wkey;>247 — Appellate Jurisdiction —r Certification — Writ of Error Grantable.
    The Court of Civil Appeals will not certify a case to the Supreme Court, where that court has jurisdiction ,to grant a writ of error.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 4S7, 749, 751-754, 757, 759, 760, 762-764; Dec. Dig. &wkey;247.]
    Appeal from Caldwell County Court; J. T. Ellis, Judge.
    On motion for rehearing.
    Overruled.
    For former opinion, see 178 S. W. 1050.
    E. B. Coopwood and Nye H. Claris:, both of Lockhart, for appellant. O. Ellis, Jr., S. R. Graves, and T. B. Monroe, all of Lockhart, for appellee.
   JENKINS, J.

In our original opinion herein we held that article 4951, R. S. (article 3096eee, c. 69, Acts 28th Leg.), was constitutional. A careful examination of the able brief and argument of appellant herein on its motion for a rehearing has not changed our views as to this.

Appellant vigorously assails our opinion herein, wherein we held that appellant was not in a position to attack the constitutionality of the enactments of the Legislature regulating the admission of foreign corporations to do business in this state for the reason that in accepting such permit it agreed to be bound by such enactments. Article 4972 makes the provisions of title 71, R. S., conditions precedent upon which foreign insurance companies shall be permitted to do business in this state, and provides that such companies by doing business in this state “shall be held to have assented thereto.” The law is a part of every contract. Under the law of this state when a foreign insurance corporation obtains a permit to do business in this state, every provision of tL, tie 71 of the Revised Statutes, in so far as* applicable to its line of business, becomes a part of its contract to do business in this state. Having accepted said provisions and agreed to be bound thereby, it will not, after doing business under such permit (and without. which it could not have any business in this state), be heard to question the validity of such provisions.

Such we understand to be the effect of the decision of the Supreme Court of the United States in Waters-Pierce Oil Co. v. State of Texas, 177 U. S. 28, 20 Sup. Ct. 518, 44 L. Ed. 657. In that case it was contended by appellant that the statute of Texas was unconstitutional, in that it took away “the property and liberty assured by the fourteenth amendment of the Constitution of the United States,” and made “many discriminations between persons and classes of persons.” To this the court replied:

“The plaintiff in error is a foreign corporation, and what right of contract has it in the state of Texas? This is the only inquiry, and it cannot find an answer in the rights of natural persons. It can only find an answer in the rights of corporations and the powers of the state over them. What those rights are and what that power is has often been declared by this court.”

The court quotes with approval from Paul v. Virginia, 8 Wall. 168, 19 L. Ed. 357, as follows:

“Having no absolute right of recognition in other states, but depending for such recognition and the enforcement of its contracts upon their assent, it follows, as a matter of course, that such assent may be granted upon such terms and conditions as those states may see proper to impose. They may exclude the foreign corporation entirely. * * * The whole matter rests in their discretion.”

As a conclusion of this whole matter the court said:

“The statute of 1889 (which was assailed as being unconstitutional), therefore, was a condition upon the plaintiff in error within the power of the state to impose, and whatever its limitations were upon the poiver of contracting, whatever its discriminations were, they became conditions of the permit and were accepted with it’’ (Italics ours.)

It will be observed that article 4951, R. S., does not discriminate between foreign and domestic insurance companies. This is a suit to recover on an insurance contract, and the appellant seeks to read into that contract questions and answers in the application for the policy, when under the provisions of title 71, R. S., hereinbefore referred to, such questions and answers did not become a part of such policy, for the reason that a copy thereof did not accompany said policy.

For the reasons stated in our original opinion herein, we overrule appellant’s contention that appellee was not entitled to a judgment for the penalty and attorney’s fees recovered.

For the reasons stated herein, appellant’s motion for a rehearing is overruled.

The Supreme Court has jurisdiction to grant a writ of error in this case, for which reason the motion to certify is also overruled. Jones v. Lopez, 172 S. W. 992, 993; Day v. Mercer, 175 S. W. 766.

Motion overruled.