source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    ONSTOTT v. STATE.
    (No. 3266.)
    (Court of Criminal Appeals of Texas.
    Oct. 21, 1914.)
    1. Criminal Law (§ 396) — Evidence ADMISSIBLE BY REASON OE ADMISSION OE SIMILAR Evidence.
    On a criminal trial, it was not error to admit evidence respecting a matter which accused had injected into the case on cross-examination of a witness,, and concerning which he ■had voluntarily testified on his own direct examination.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 861, 862; Dec. Dig. § 396.]
    2. Criminal Law (§ 342) —Evidence —Rebuttal.
    On a trial for false swearing in connection with the obtaining of a license, where accused filed a plea for a suspended sentence and testified as to his reasons for not delivering a license which he had previously obtained for the same parties, it was not error to permit the state to show that such license was not delivered for a different reason.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 773, 774; Dec. Dig. § 342.]
    3. Criminal Law (§ 797) — Instructions — Suspension oe Sentence.
    Where, on a criminal trial, accused filed a plea for a suspended sentence, but the court failed to instruct in regard thereto, except in giving the form of verdict, and refused a special charge to disregard the statement of the district attorney, in his argument,_ that the jury could not recommend a suspension of sentence because of the lack of proof as to accused’s good reputation, the conviction would be reversed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1935-1937; Dec. Dig. § 797.]

      4. CRIMINAL Raw (§ 885) — Suspension oe Sentence — Power oe Jury.
    Though, under the statute authorizing the suspension of sentences, evidence as to accused’s previous reputation is admissible to assist the jury in determining whether they will suspend the sentence, a finding that his previous reputation was not good does not prevent them from recommending a suspension of sentence, they being authorized to make such recommendation, unless accused has previously been convicted of a felony.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2108; Dec. Dig. § 885.]
    Appeal from District Court, Hood County; W. J. Oxford, Judge.
    Bert Onstott was convicted of false swearing, and he appeals.
    Reversed and remanded.
    J. R. Stubblefield, of Eastland, and Hickman & Bateman, of Dublin, for appellant. O. E. Lane, Asst. Atty. Gen., for the State.

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

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

   HARPER, J.

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

The evidence amply supports the verdict of guilty. The bills of exceptions in regard to the evidence adduced about appellant having, prior to the commission of this offense, obtained license for the same parties in McLennan county, present no error, inasmuch as the defendant on cross-examination of the first witness injected this issue in the case, and then, when he took thé stand in his own behalf, in his direct examination, went voluntarily into this matter fully. The evidence offered by the state in rebuttal, and to which his objections go, was admissible as showing that he had not refused to deliver the first license for the reasons stated by him, but because he was not paid the amount demanded. He had placed in the case the issue of suspended sentence; and the plea he had put up in his testimony that he had not delivered the first license, because he had learned that the father of the girl objected, and would not do so, and that he had been misled into believing that the father did not object, etc., certainly rendered the testimony offered by the state admissible on this issue.

However, before the beginning of the trial, appellant filed a plea asking that, in case he was convicted, his sentence be suspended, alleging that he had never before been convicted of a felony. The court in his charge nowhere mentioned this plea, nor instructed the jury in regard thereto, other than in giving the form of the verdict that they should render, and appellant objected to the charge because “the same was incomplete and insufficient, and because it did not properly submit to the jury the law with reference to the suspension of sentence.” This objection was most too general, and we would not feel authorized to reverse the case on account of so general an exception to the charge, if in connection with other bills in the record the error was not made so manifest In another bill it is shown that:

“In the closing argument of the district attorney he used the following language, in substance : ‘Gentlemen of the jury: Section 2 of the act of the Legislature approved February 11, 1913, providing for a suspension of sentence provides as follows: “The court shall permit testimony and submit the question as to the general reputation of defendant to enable the jury to determine whether to recommend the suspension of sentence, and as to whether the defendant has ever before been convicted of a felony.” Under this law, gentlemen of the jury, you cannot recommend to the court that the sentence be suspended, because it has not been shown that the general reputation of the defendant in the community in which he lived was good.’ This argument was promptly excepted to, and the appellant asked that the following special charge be given, which was by the court refused: ‘Gentlemen of the jury, you are instructed to disregard that portion of the speech of the district attorney, John J. Hiner, wherein he stated that under the law they could not recommend that the court suspend sentence unless they (the jury) find that the defendant, Bert Onstott, had a good reputation in the community where he resided.’ ”

The court had not instructed the jury as to the law regarding a suspension of sentence in his charge, and permitted the district attorney to incorrectly state the law in regard thereto in his argument, and, when requested to withdraw such incorrect construction of the law, refused to do so. Where one has filed an application for a suspension of sentence, there is but one prerequisite finding that the jury must make, and that is that he has not theretofore been convicted of a felony in this or any other state, before they are debarred the privilege of recommending a suspension of sentence if they see proper to do so. If the appellant, on trial, has theretofore been convicted of a felony, no suspension can be made under the law. But this is not true as regards his prior general reputation. Evidence as to his previous reputation is admissible under the law, to assist the jury in determining whether they will or will not suspend the sentence. A jury might believe that his previous reputation was not good, and yet there might be mitigating circumstances in the case, and the jury determine, on account thereof, to recommend the suspending of the sentence. The district attorney incorrectly informed the jury that, if they found his previous reputation was not good, they could not suspend the sentence. This is not the law.

A suspension of sentence of a term of years in the penitentiary is a valuable right, and where one has never before been convicted of a felony and as appellant files this plea, the trial court should carefully guard this right in having the plea properly presented to the jury. It is true appellant received the lowest penalty authorized under the law; but who can say that, if the district attorney had not read this statute, and informed the jury that, if they found that appellant’s prior reputation was not good, they could, not suspend, the sentence, they would not have recommended a suspension of sentence. This, too, where the court, in his charge to the jury, had given them no instructions in regard to the matter. As before said, evidence of prior reputation is admissible to enable the jury to determine whether they will or will not recommend a suspension of sentence, if they find he has not theretofore been convicted of a felony; but if they should find adversely to one on that issue, they are authorized by the law to recommend a suspension if they should deem it proper to do so.

Because this matter was not properly presented to the jury in the court’s charge, and the district attorney was permitted to incorrectly state the law to the jury in his argument, which the court refused to withdraw from the jury, it • will necessitate a reversal of the case.

Reversed and remanded.


author: DAVIDSON, J.

text:
    GUY v. STATE.
    (No. 3222.)
    (Court of Criminal Appeals of Texas.
    Oct. 14, 1914.)
    Weapons (§ 6) — Carrying Weapons — Elements 02T OFFENSE.
    Where defendant and two other boys were riding along together, and one of the others handed defendant a pistol and told him to fire it, which defendant did, and thereafter immediately dropped the pistol, the defendant was not guilty of unlawfully carrying a pistol.
    [Ed. Note. — Eor other cases, see Weapons, Cent. Dig. § 5 ; Dec. Dig. § 6.]
    Appeal from Polls County Court; P. R. Rowe, Judge.
    Henry Guy was convicted of carrying a pistol, and he appeals.
    Reversed and remanded.
    Campbell & Campbell, of Livingston, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, J.

This conviction was for a violation of the pistol law. Penal Code 1911, §§ 475-480. There seems to be no conflict in the testimony. The facts disclose that appellant was riding a mule bareback in company with two other youngsters. They were traveling the road, and near the residence of McGowen two pistol • shots were fired and immediately the third. McGowen was inside of his house at the time, but immediately went out, and says the defendant fired the third shot and immediately fell off his mule in about 30 steps of his gate. The pistol was picked up and given to one of the other parties named Bass. Appellant was assisted in getting upon his mule, and the three, defendant, Bass, and Wyatt, rode away. It is shown that the three parties were traveling together. It is further shown that the pistol belonged to Bass, and when they reached the point where the pistol was fired Bass handed appellant the pistol and told him to shoot it. , Appellant took the pistol and fired it three times, and then fell off his mule, the pistol going one way and the defendant the other when he fell. Wyatt picked up the pistol and handed it to Bass. It is shown by the witnesses that defendant did not have the pistol before reaching the spot where it was fired, nor after leaving there. Appellant’s entire and only connection with the pistol was as stated, Bass handing it to him, and he fired it three times. This is the case on the facts. Under the authorities this does not constitute carrying a pistol. See Fretwell v. State, 52 Texas Cr. R. 499, 107 S. W. 837; Sanderson v. State, 23 Tex. App. 520, 5 S. W. 138; Cathey v. State, 23 Tex. App. 492, 5 S. W. 137; Fuller v. State, 58 Texas Cr. R. 449, 126 S. W. 569; Baker v. State, 28 Tex. App. 5, 11 S. W. 676.

There are other questions in the case which would require a reversal for refusal to give requested charges; but, in view of the fact that the evidence does not show an unlawful carrying of the pistol within the contemplation of our statute, the other questions are not discussed.

The judgment is reversed and the cause remanded.


text:
    Ex parte DOOLEY.
    (No. 3299.)
    (Court of Criminal Appeals of Texas.
    Oct. 14, 1914.)
    Bail (§ 49*) — Criminal Prosecutions — Homicide — Evidence.
    Evidence on an application for bail by one indicted for murder, held sufficient to raise both the issue of manslaughter and self-defense, and not to amount to evident proof of express malice, and therefore to entitle defendant to bail.
    TEd. Note. — Eor other cases, see Bail, Cent. Dig. §§ 195-208, 241, 244; Dec. Dig. § 49.*]
    Appeal from District Court, Jefferson County; John M. Conley, Judge.
    Application of E. J. Dooley for admission to bail. From a judgment refusing bail, relator appeals.
    Reversed and bail granted.
    Blain & Howth and McDowell & Ferguson, all of Beaumont, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was indicted charged with the murder of Chas. Weber. He sued out a writ of habeas corpus in the district court, and the court, after hearing the testimony, refused bail and remanded relator, from which judgment this appeal is prosecuted.

The facts would show that a daughter of appellant had married one Gus Magadieu, and they had two girl children, one nine years old, the other being younger. Maga-dieu and deceased, Weber, were partners in the saloon business. Magadieu and Weber were running a gambling bouse at the residence of Magadieu. Mrs. Magadieu on, occasions bad requested her husband to have the gambling at her house stopped, and this and other matters had come near to causing a separation. Magadieu would not stop the gambling, and Mrs. Magadieu appealed to her father, appellant. On the night of the killing Weber and a number of others had gathered at Magadieu’s to engage in a game of poker. The evidence is conflicting as to the time appellant arrived at the house, but it is apparent that as Weber was arranging matters to open the game appellant went into the room; that he blamed Weber as being the cause of the gambling at the house, cursed him, and told him it had to be cut out. Magadieu said it was his house, and that appellant had nothing to do with it. Appellant cursed him and threatened to kill him, when Magadieu left the house to go and telephone for an officer. The state’s ease is that Weber got up and started off, when appellant shot and killed him. Mrs. Magadieu testified that when her father came she again asked him to stop the gambling at the house; that it would ruin her and the girls, and testified further that Weber had that day made improper and insulting proposals to her, and she told her father about it at that time; that he became very angry and went in the room. The only material difference in her further testimony and that of the others is that when her husband started to the telephone she looked in the room, and as she did so Weber had his hand on a chair, and looked as if he was going to strike with it, and she turned off, when the shot fired. Under such circumstances we think both the issue of manslaughter and self-defense is raised by the testimony; that the proof of murder upon express malice is not evident, and under such a state of facts appellant was entitled to bail. The record further shows that he is a poor man and has very little, if any, property.

The judgment is reversed, and bail is granted in the sum of $5,000.


author: DAVIDSON, J. HARPER, J. PRENDERGABT, P. J.

text:
    NICHOLS v. STATE.
    (No. 3256.)
    (Court of Criminal Appeals of Texas.
    Oct. 21, 1914.)
    1. Criminal Law (§§ 419, 420) — Evidence-Hearsay.
    In a prosecution for keeping a disorderly house, testimony of a policeman that a certain woman stated to him, in defendant’s absence, that defendant knew that she and the man who registered with her were not husband and wife, being hearsay, was improperly admitted.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 973-983; Dee. Dig. §§ 419, 420.]
    2. Disorderly House (§ 16) — Evidence-Admissibility.
    In a prosecution for keeping a disorderly house, the testimony of a policeman that he found a young man in a room with defendant and that they both paid fines, and the testimony of another witness that he found defendant in bed with.a man, was admissible.
    [Ed. Note. — For other cases, see Disorderly House, Dec. Dig. § 16.]
    Prendergast, P. J.,' dissenting in part.
    Appeal from Dallas County Court, at Law; W. F. Whitehurst, Judge.
    Mattie Nichols was convicted of keeping a disorderly house, and appeals.
    Reversed and remanded.
    Wm. H. Allen, of Dallas, for appellant. G. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, J.

There was quite a lot of testimony introduced, or what purports to be testimony, much of which ought not, perhaps, to have gone to the jury. The state’s case, in the main, was made by the testimony of policemen, who said they visited the place and had found couples there, and on two or three occasions their evidence tends to show it was for illicit purposes. They assert that on two or three occasions, or on several occasions, they found men and women occupying rooms in such manner as to indicate they had been in bed together. Two or three of these are shown by common reputation to be prostitutes, and some of the evidence, perhaps, is sufficient to show they had engaged in illicit intercourse. • All this was denied by the appellant, so far as anything would go to show that the house was a place where prostitutes resorted.

During the trial Roddy, a policeman, was permitted to testify that a woman named Baldwin was found by him in this house with a man, and that they were registered as man and wife. The state was then further permitted to prove, over the objections of the defendant, that in the absence of defendant the Baldwin woman stated to the policeman that Mrs. Nichols knew her, and knew the man with her was not her husband, but they had to mark it on the book that way so as to get the room. He also testified, as shown by the bill, that the Baldwin woman and the man were registered there as man and wife. Various'Objections were urged to this — among others, that it was made, as stated in the bill, in the absence of appellant, and was hearsay as to her, and inadmissible and irrelevant. The evidence was admitted over these objections. We are of the opinion that this was error. The statement of the Baldwin woman to Policeman Roddy that Mrs. Nichols knew her, and knew the man with her was not her husband, but they had marked it on ■the book that way so as to get the room, was not provable against appellant. It was hearsay pure and simple. If Mrs. Baldwin had been present and testified, and had stated these matters as facts, it might, perhaps, have been admissible; but her statement to Roddy in the absence of appellant could not be used against appellant before the jury. It was purely hearsay, which in no way was binding upon appellant and not introducible against her. This was damaging testimony, because, if appellant knew the man was not the husband of the Baldwin woman, and compelled them to register on the book as man and wife in order to get the room, and that, in securing the room and occupying it they had carnal intercourse, it would have been damaging against appellant; but the Baldwin woman did not so testify, and in fact she did not testify in the case. Roddy could not repeat what the Baldwin woman had said to him about these matters.

The same may be said in regard to bill No. 4. The same Roddy testified that on one occasion he was at defendant’s house and found a young fellow there, and this youngster stated to him that he had been in bed with defendant ; that Mrs. Nichols, appellant, was in the next room when the statement was made, and that he did not know whether she heard it or not. This was also hearsay, and should not have been introduced against appellant, unless it was shown that she was in position to hear what was said. She was not in the room with the parties when .the young map made the statement to Roddy. The young man did not testify in the case, and .this is but his statement to Roddy, which Roddy produced before the jury. It may be questionable whether or not these facts could be proved against her, even by the young man. She was not charged with adultery, but was charged with keeping a house where prostitutes were permitted to resort and ply their vocation. Under the statute, and the decisions construing it, the woman herself could not keep a disorderly house by her own acts of prostitution. The allegations were that she kept a house where prostitutes resorted. She could not be charged with resorting to her own house. The statute does not so contemplate. The statute was passed to punish the party for permitting other women to resort there than herself.

Roddy was also permitted to testify that on one occasion he found a young man in the room with defendant, and the state then proposed to further show by him that:

“We charged her (meaning the defendant) with being a common prostitute, and we locked the man up, too; but he paid his fine, and she paid a fine, also.”

And the state further proved by Harrison that he found the defendant in bed with a man, or evidence to that effect. Various objections were urged to this. It may be very doubtful whether this testimony was admissible on a charge against appellant for keeping a disorderly house; that is, a bawdyhouse where prostitutes were permitted to resort to ply their vocation. The fact that appellant herself committed adultery with men would not sustain the charge that other women came there. The writer is of the opinion that this testimony should not have been permitted to go to the jury; nor was it permissible to show that she had been fined, and also that the man had been fined, ag we understand the ruling of this court. See Young v. State, 55 Tex. Cr. R. 384, 116 S. W. 1158; also Riley v. State, 58 Tex. Cr. R. 176, 125 S. W. 582.

For the errors indicated, the judgment is reversed, and the cause is remanded.

HARPER, J.

I concur in holding .that the testimony of Roddy, wherein he testified that a woman named Baldwin, “in the absence of appellant, had told him (Roddy) that appellant knew her, and knew .the man with her was not her husband, but required them to register that way to get the room,” and the .testimony of Roddy, wherein he testified a “young fellow told him he had been in bed with appellant,” is inadmissible. Neither of these witnesses testified in the case, and appellant is not placed in position to have heard them make the statements to Roddy. The other testimony I think admissible.

PRENDERGABT, P. J.

In .this character of offense I believe all the evidence was admissible, and the case should be affirmed. Cunningham v. State (Tex. Cr. App.) 166 S. W. 521, and cases cited.


text:
    ROSS v. STATE.
    (No. 3247.)
    (Court of Criminal Appeals of Texas.
    Oct. 21, 1914.)
    1. Ceiminal Daw (§ 1092) — Bill of Exceptions— Sufficiency.
    A bill of exceptions not filed within the 30 days allowed by statute cannot be considered, where no additional time was granted by the court.
    [Ed. Note. — F'or other cases, see Criminal Daw, Cent. Dig. §§ 2803, 2829, 2834-2861, 2919 ; Dec. Dig. § 1092.]
    2. Cbiminal Daw (§ 1090) — Bill op Exceptions — Necessity.
    Under Acts 33d Deg. c. 59, the fact that objections to the charge were made before it was read to the jury may be preserved by a bill of exceptions approved by the trial judge.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    3. Homicide (§ 340) — Appeal — Harmless Error.
    Where the jury found accused guilty of manslaughter only, the submission of the issue of murder was harmless error.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 715-717, 720; Dec. Dig. § 340.}
    4. Homicide (§ 303) — Evidence—Issues.
    Where accused claimed that deceased came into his pool hall, raised a row, and drove him from the hall, when deceased was caught by bystanders and, ejected, and that thereafter deceased returned armed with a bottle, and upon his threatening to strike, accused shot, there is no ground for the submission to the jury of the issue that accused had the right to slay in defense of his property.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 635; Dec. Dig. § 303.]

      5. Criminal Law (§ 817) — Triai>-Instruo-tions.
    A charge that the jury should disregard what they had heard of the case, or knew of the character of any of the witnesses, and confine themselves to the evidence alone on the trial, not informing fellow jurors of their knowledge, is not erroneous.
    [Ed. Note. — For other cases, see Criminal Law, Cent Dig. § 1942; Dec. Dig. § 817.]
    Appeal from District Court, Fayette County; Frank S. Roberts, Judge.
    Buck Ross was convicted of manslaughter, and he appeals.
    Affirmed.
    C. D. Krause and John T. Duncan, both of La Grange, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

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

   HARPER, J.

Appellant was convicted of manslaughter, and his punishment assessed at four years’ confinement in the penitentiary.

The Assistant Attorney. General has filed a motion to strike from the record the bills of exception, because not filed within the time allowed by law. The statute gives SO days after adjournment of court in which to prepare and file bills of exception, and if more time is desired application must be made to the trial judge, who may grant or refuse such permission. In this case no application was made for additional time, and the court granted none, as shown by the record before us, and under such circumstances tiie motion of the Assistant Attorney General is sustained; the bills not having been filed within the time allowed by law.

There is what is termed in this record “defendant’s exceptions to the charge of the court.” This is not verified in any way. The trial judge’s name is not appended thereto, nor is it in any manner approved in á way so as to make it properly a record paper. It is true that the file marks of the clerk appear thereon and show this paper was filed May 16, 1914, the same date the court’s charge was filed; but this does not evidence the fact that it was presented to the trial judge before his charge was read to the jury, or that it was ever presented to the trial judge. The radical changes made by the Thirty-Third Legislature (chapter‘59) in regard to these matters has been frequently before our civil courts, and in each and every instance, so far as we have been able to ascertain, the holding has been that the fact that the objections were made before the charge was read to the jury must be evidenced by a bill of exceptions approved by the trial judge. Eldridge v. Citizens’ Ry. Co., 169 S. W. 375; Heath v. Huffhines, 168 S. W. 974; Gulf, T. & W. Ry. Co. v. Culver, 168 S. W. 514; Ford Motor Co. v. Freeman et al., 168 S. W. 82; Southwestern Ry. Co. v. Wadsack, 166 S. W. 42; Saunders v. Thut, 165 S. W. 553; Johnson v. Hoover & Lyons, 165 S. W. 900; Quanah, A. & P. Ry. Co. v. Galloway, 165 S. W. 546. Other cases from our civil courts construing these amendatory acts could be cited, but as the cases above quoted discuss the matter fully from every viewpoint we deem it unnecessary to cite others. It appears that not only must objection in writing be made to the charge before it is read to the jury, but if the court overrules the objections a bill of exceptions must be reserved to the action of the court and be incorporated in the record. We think this the correct rule, unless we should be considering matters not verified properly. However, if we should ignore the statute, which we have no right to do, and consider the objections made to the charge, they present no error.

The first complaint is the court erred in submitting the issue of murder. The jury found appellant guilty of manslaughter only; consequently this presents no error.

The next two grounds relate to the failure of the court to submit the issue that defendant had the right to slay in • defense of his property. Take the case from appellant’s standpoint or testimony alone, is this issue presented? Appellant was manager of a .pool hall, in which all were admitted. Deceased came into his pool hall, raised a row, and pulled his knife, when appellant fled, deceased pursuing him. Deceased was taught by bystanders and carried out of the pool hall. Appellant then got a gun and went to the door of the pool hall. He says deceased had a bottle in his hand, advancing towards the pool hall, when he called to him not to come any nearer; that deceased continued to approach, and drew his hand back, with the bottle in it, as if to strike, when he shot. This does not raise the issue of defense of property. Deceased was not attempting to take appellant’s property, nor any part thereof, nor in any manner injure the property. According to his testimony, it was appellant deceased was after, and him alone, and the court submitted self-defense in a manner not otherwise complained of by appellant.

Appellant’s objections show that he also objected to that portion of the charge which instructed the jury that what they may have heard of the case, either from hearsay or otherwise, or should any juror have any knowledge as to the character of any witness who has testified on the trial, either in favor of or against the witness, such juror is prohibited from stating such knowledge to his fellow jurors, and to confine themselves alone to the evidence adduced on the trial. Had the jurors stated any fact which they were prohibited by this charge from stating, it would be error, in that they would be considering ■ additional evidence to that adduced on the witness stand, and the criticisms of this part of the charge present no error.

The bills relating to the admissibility of testimony cannot be considered, as the bills of exception were not filed witliin the time permitted by law.

We trust that counsel in all cases will pay more attention to the act of the Thirty-Third Legislature, which requires them to object to the charge of the court before it is read to the jury, and if they do object to the charge, or any part thereof, they will preserve such objections in a proper bill of exceptions. This is now required by the statute law of the state, and it will aid this court materially. After objections are made, should the court correct his charge in accordance with the request made, the objections have no place in the record. We have but recently, in another case, read a lengthy list of objections, and when we turned to the charge as given it was manifest that each objection made had been sustained, and the court’s charge changed to conform with the requests made, putting much unnecessary labor on the court.

A man’s life and liberty is dear to him, and if error is manifest in the record we feel inclined to give him the benefit of it, and reverse the case in so far as we may do so under the law as passed by the Legislature. But we are unable to do so when the record is not prepared in the way required by law. We have said this much in this case, because in it appellant has suffered no injury, as herein shown, by the failure of counsel to preserve in a proper bill of exceptions their objections to the charge of the court. We trust that in future it will not be necessary to again refer to it, but counsel will present by proper bills of exception all errors relied on to reverse the case. The lawmaking body, the Legislature, has seen proper to make these changes in our procedure, and by them we are bound.

The judgment is affirmed.


text:
    SPARLIN v. STATE.
    (No. 3249.)
    (Court of Criminal Appeals of Texas.
    Oct. 28, 1914.)
    1. Criminal Law (§ 595) — Trial—Continuance.
    In a prosecution for bigamy, accused claimed that he was informed and believed that his first wife was dead at the time of his second marriage, asserting that an old army companion, who could not be located at the time of the trial, wrote him to that effect. The mother of his second wife, who was temporarily without the state, made affidavit that she would testify that accused, when he asked her permission to marry her daughter, showed her such a letter, and that such letter had been lost. Reid that, where accused propounded interrogatories to the witness, so that her deposition could be taken, and the prosecutor neglected to cross them, though they were submitted six weeks before trial, it was error to deny accused a continuance to procure the testimony of the mother of his second wife.
    [Ed. Note. — For other cases, see .Criminal Law, Cent. Dig. §§ 1311, 1323-1327; Dee. Dig. § 595.]
    2. CRIMINAL Law (§ 789) — TRIAL—INSTRUCTIONS.
    In a prosecution for bigamy, where accused’s defense was that he had been informed and believed that his first wife’ was dead, he is entitled to the benefit of reasonable doubt on his defense.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1846-1849, 1851, 18S0, 1904r-1922, 1960, 1967; Dec. Dig. § 789.]
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    James F. Sparlin was convicted of bigamy, and he appeals.
    Reversed, and cause dismissed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted of bigamy. The defense he makes to the charge is that he was informed and believed that his first wife was dead at the time of the second marriage. He filed an application to continue the case on account of the absence of Mrs. V. L. Knowles, who was temporarily in California. He shows he propounded interrogatories to the witness and delivered them to the district attorney, who agreed to cross them, but neglected and failed to do so. This was some six weeks before the trial, and the district attorney had continually promised to cross the interrogatories, that the depositions might be taken. He states he expected to prove by Mrs. Knowles that he exhibited and delivered to her a letter from H. J. Alma to defendant, informing him of the death of his first wife in a hospital in Oklahoma City, at the time he asked her consent to marry her daughter, his second wife; that she (Mrs. Knowles) had lost the letter. Attached to the motion for a new trial is the affidavit of Mrs. Knowles that she would so testify, and under such circumstances we think the court erred in not granting a new trial. It was not a question for the court to determine whether or not the testimony was true under such circumstances, but the appellant had the right to have this testimony before the jury on the issue of whether or not appellant, at the time of the second marriage, believed his first wife was dead. Appellant testified to receiving this letter from Alma, and his effort to locate Alma, with whom he had served in the army. Mrs. Knowles, in her affidavit, substantiates his contention that he did receive such a letter and delivered it, and she had lost it.

Appellant also complains of the charge of the court submitting the defensive issue. We think appellant should have been given the benefit of a reasonable doubt on this issue, as contended by him, and the charge should be so framed in another trial. We have said this much in view of another trial, if the state should see proper to reindict appellant.

A motion was made to quash the indictment, and under the holding of this court in the cases of McAfee v. State, 38 Tex. Cr. R. 124, 41 S. W. 627, Vinsant v. State, 42 Tex. Cr. R. 413, 60 S. W. 550, and Bryan v. State, 54 Tex. Cr. R. 18, 111 S. W. 744, 16 Ann. Cas. 515, should have been sustained. In this last case Judge Ramsey exhaustively reviews the authorities, and under the motion to quash, the indictment should have been quashed.

The judgment is reversed, and the cause is dismissed.


author: PRENDERGAST, P. J.

text:
    MAYFIELD v. STATE.
    (No. 3221.)
    (Court of Criminal Appeals of Texas.
    Oct. 28, 1914.)
    Weapons (§ 17) — Criminal Pbosecution — Sufficiency of Evidence.
    In a prosecution for carrying of a pistol on or about the person, evidence as to carrying a pistol either in Ms buggy or under the cushion of the seat held to establish the offense.
    [Ed. Note. — -For other cases, see Weapons, Cent. Dig. §§ 20, 22-33; Dec. Dig. § 17.]
    Appeal from Hamilton County Court; J. L. Lewis, Judge.
    John I. Mayfield was fined $100 for unlawfully carrying a pistol, and he appeals.
    Affirmed.
    Eidson & Eidson, of Hamilton, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, P. J.

Appellant was fined $100 for unlawfully carrying a pistol. The case was tried before the court without a jury. The statute is, if any person shall carry on or about his person any pistol, he shall be punished, etc.

Appellant’s only contention is that the evidence is insufficient to sustain the judgment. There were but two witnesses for the state, M. L. Pierce and his wife. Pierce testified:

“That during the fall of 1911 he and Ms wife lived with the defendant, John I. Mayfield; that Mayfield was during said fall collecting for the firm of Hitt & Co.; that he saw the defendant many times during said fall take his pistol from his house and place it in his buggy, sometimes on, sometimes behind, and sometimes under, the cushion of the buggy seat; that he never did see him place it in the bottom of the buggy, under the seat; that Mayfield would get into his buggy and drive into the lane 20 or 30 yards from his house, and drive on down the big road towards the ‘mountains’ on his collecting trips; that once, when he-asked him why he carried the pistol, he said, ‘Them mountain fellows might be hard to get money out of,’ or something like that; that on another occasion he (witness) told him that the sheriff would get him sometime, and he (Mayfield) replied that he was not big enough, or something of that kind; that defendant’s house and the road he would drive into was in Hamilton county; that he never saw him with a pistol off of his hand, but he never saw him change the position of the pistol after he got into the buggy; that defendant got off his own premises when he got into the public road close to his house; that he has also seen the defendant take the pistol out of his buggy when he would come in from his collecting trips; that neither of these trips was when he went to Austin.”

Mrs. Pierce testified:

“That she saw the defendant at different times during the fall of 1911 take the pistol from the bureau drawer in his room and place it on or behind the buggy cushion; these occasions were when he was starting out collecting; that the buggy at the time was on Ms own land, but he would drive off of his land a short distance from the house into the public road, which was in Hamilton county; that at one time she, at his request, handed him the pistol after he had gotten into the buggy; that she also saw the pistol several times, when he would come from collecting, behind or under the buggy cushion; this was when she would go to the buggy after the mail.”

Appellant testified, denying that he had a pistol under the above circumstances, but testified that the only time he carried the pistol was when he carried it in his grip on a trip to Austin, and denied that he had a pistol under any of the circumstances testified to by the two state’s witnesses.

This is the whole of the testimony. In our opinion it established appellant’s guilt, and justified the court to so find. In addition to the statute, we cite Garrett v. State, 25 S. W. 285; Hill v. State, 50 Tex. Cr. R. 619, 100 S. W. 384; Williams v. State, 58 Tex. Cr. R. 195, 125 S. W. 42; Leonard v. State, 56 Tex. Cr. R. 84, 119 S. W. 98; Prewitt v. State, 49 Tex. Cr. R. 323, 92 S. W. 800.

The judgment is affirmed.


text:
    Ex parte BURTON.
    (No. 3323.)
    (Court of Criminal Appeals of Texas.
    Oct. 28, 1914.)
    Bail (§ 43*)— Cbiminal Pbosecution — Right to Bail.
    Where the evidence for the state under a complaint charging murder would support a verdict of murder upon express malice, an offense not bailable, but defendant’s evidence raises the issues of self-defense and imperfect self-defense, so as to require their submission to the jury, he was entitled to bail.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. §§ 153-164; Dec. Dig. § 43.*]
    Appeal from District Court, Hemphill County ; F. P. Greever, Judge.
    J. N. Burton, under a complaint charging him with murder, was remanded to jail without bond on habeas corpus hearing, and he appeals.
    Reversed, and bond fixed in the sum of $7,500.
    J. F. Cunningham, of Abilene, and Frank Willis, of Canadian, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant, under a complaint charging him with murder, was remanded to jail without bond on habeas corpus hearing. The evidence would show that trouble existed because of differences growing out of the relationship of landlord and tenant; ap.pellant being a tenant of deceased. The state’s evidence would support a verdict of murder upon express malice, therefore rendering the case nonbailable. But the defendant’s evidence raises the issues of self-defense and imperfect self-defense with such cogency as we think to require the court to submit those issues to the jury, and a court cannot say that a jury would not be justified in finding for the defendant on one or the other of those defenses, and under such circumstances we think the court erred in refusing to grant appellant bail.

The judgment is reversed, and bond fixed in the sum of $7,500.


text:
    ALLEN v. STATE.
    (No. 3272.)
    (Court of Criminal Appeals of Texas.
    Oct. 28, 1914.)
    Criminal Law (§ 614) — Trial—Time to Secure Counsel.
    Where an offense was committed some time before court convened, and the case was postponed to allow defendant to arrange for counsel, and where defendant had ample time to secure counsel before it was subsequently called, a refusal to postpone again to allow him to secure counsel, and his trial without counsel, was not reversible error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1312-1314; Dec. Dig. § 614.]
    Appeal from District Court, Camp County; R. W. Simpson, Judge.
    Ben Allen was convicted of assault to murder, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was convicted of assault to murder, and his punishment fixed at 10 years in the penitentiary.

There are no bills of exception in the record, and no complaint was made to the charge of the court before it was read to the jury. However, in appellant’s motion for a new trial he complains that he was not given ample time to secure counsel to represent him, and that he was tried without counsel. In the qualification to the bill the court states:

“The case was called for trial on a day of the term previous, and, defendant having informed the court that he wanted to go out in the country to get some white men to arrange for counsel, the ease was passed. The .offense was committed some time before court convened, which was on or about March 13, 1914, and defendant, an able-bodied man, had ample time to procure counsel.”

As thus qualified, the bill presents no error. By it, it is shown that the court had postponed the case to give appellant time to procure counsel, and if he had not used that time in obtaining counsel*the court would have no assurance that, if he again postponed it, the same plea would not be interposed when the case was called for trial the third time.

Affirmed.


text:
    WOODARD v. STATE.
    (No. 3282.)
    (Court of Criminal Appeals of Texas.
    Oct. 28, 1914.)
    1. Criminal Law (§ 1144*) — Appeal — Presumptions.
    Where the evidence is not in the record, it must be presumed that evidence in support of a motion to strike out accused’s plea of former jeopardy supported the action of the court in striking such plea.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2764, 2766-2771,2774-2781, 2901, 3016-3037; Dec. Dig. § 1144.*]
    2. Criminal Law (§ 202*) — Former Jeopardy.
    The offense of attempting to pass an instrument knowing it to be forged is different from the offense of having possession of an instrument knowing it to be forged with intent to use and pass it as true; hence an acquittal of the first offense does not bar a prosecution for the second.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 386-403, 408, 409; Dec. Dig. § 202.*]
    3. Criminal Law (§ 1056*). — Appeai>-Pees-ENTATION OP GROUNDS OP REVIEW IN COURT Below.
    The refusal of special requested charges cannot be taken advantage of on appeal, where exceptions to the refusal were not reserved by bills of exceptions, and the record did not show when the charges were presented.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2668, 2670; Dec. Dig. § 1056.*]
    4. Forgery (§ 48*) — Prosecution—Instructions.
    In a prosecution for having possession of a known forged instrument with intent to pass it, a requested charge that, if the name signed to the instrument purported to be the act of Fred Williamson and the jury found the name to it to be Freed William, they should acquit, is properly refused where the name actually signed to the instrument, as shown by the copy in the indictment and the instrument itself in evidence, was Freed Wiliam.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 124-128; Dec. Dig. § 48.*]
    Appeal from District Court, Lamar County; Ben H. Denton, Judge.
    Sherman Woodard, alias Willie Johnson, was convicted of knowingly having in his possession a forged instrument with the intent of passing it, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted for knowingly, etc., having in his possession a false and forged instrument in writing with intent to use and pass the same, and his punishment assessed at the lowest prescribed by law.

The indictment is in two separate and distinct counts. The first avers, with the other necessary elements, that he attempted to pass as true to one J. T. Conway said false and forged instrument in writing, a check copied in the indictment. The second avers, with the other necessary elements, that he had in his possession said check,. which was a false and forged instrument in writing, and, knowing that it was false and forged, he had it in his possession with intent to use and pass it as true. The first count was not submitted to the jury; the second was, and he was convicted on that as found expressly by the verdict.

He pleaded in writing former acquittal, claiming that it was the same offense with which he was charged and tried this time. His plea alleges that on the former prosecution and trial he was charged in the first count thereof with forging the same instrument ; that on the former trial the first count was not submitted, but ■ the second count only was. The second count in that indictment averred that he, well knowing said check to be false and forged, with intent to injure and defraud, attempted to pass it as true to one W. P. Duncan. The state, by the district attorney, moved to strike out said plea of jeopardy, because in this case he is charged with having said forged instrument in his possession, knowing it to be forged, with intent to use and pass it as true, and that the fact that he has heretofore been acquitted of having forged the same check would be no bar to this prosecution, and also the fact that he had been acquitted for having passed said forged check upon W. P. Duncan would be no bar to the prosecution in this case for having passed the same check upon J. T. Conway, and, further, that the defendant, upon former trial of the case, in which he was acquitted of having passed the forged check upon W. P. Duncan, claimed and filed a plea on account of the fact that there was a variance between the indictment and the proof, as the records of that case will show.

The judgment of the court, in passing upon this question, shows that he heard evidence and argument, and sustained the state’s motion to strike out appellant’s said plea, to which he excepted. The record in no way discloses what the evidence introduced before the court was. We must assume that the evidence supported the action of the court and that the action of the court is correct. But in any event the offenses alleged in the two indictments, although about the same check, are separate and distinct offenses, as clearly shown by the indictment in this case and appellant’s plea of jeopardy and the indictment attached as a part thereof. As shown above, the indictment in the former case, in the first count, charged appellant with forging the instrument; in the second count, with attempting to pass it upon Duncan. In this case the first count, which was not submitted, and appellant was not tried on it, charged that he attempted to pass it on Conway, and the second, that he had it in his possession, knowing it to be false, with intent to use and pass it as true, and are entirely separate and distinct offenses, and the court committed no error in striking out his plea. Branch’s Crim. Law, § 39S, p. 240, and cases there collated.

The record shows no objection to the court’s charge before it was read to the jury. There appear in the record three special charges requested by appellant. One of them was given; the other two refused. When they were presented to the court in no way is made to appear, nor does appellant except to the refusal of the court by any bill of exceptions whatever to give these two refused special charges. The matter, therefore, is not raised in such way that we can properly consider the refusal to give his two charges; but, even if we could consider the question, neither of them should have been given. One is to require the jury peremptorily to acquit appellant; the other is-to acquit him if they believe the name signed to the alleged forged instrument purports to be the act of Fred Williamson, and they find the name to it to be Freed William. The name actually signed to the instrument, as shown by copy of it in the indictment and the instrument itself introduced in evidence, was Freed Wiliam.

The only other question is: Appellant claims that the evidence is insufficient to support the verdict. We have carefully read and studied the statement of facts, and in our opinion the evidence is amply sufficient to sustain the verdict. We see no necessity or propriety in stating the evidence in this opinion.

The judgment is affirmed.


text:
    FARRIS v. STATE.
    (No. 3214.)
    (Court of Criminal Appeals of Texas.
    Oct. 14, 1914.
    Rehearing Denied Nov. 11, 1914.)
    1. Witnesses (§ 52) — Husband and Wife-Compelling Testimony.
    On a trial for keeping a disorderly house, the acts and statements of accused’s husband, proved, by the testimony of other witnesses, were not inadmissible, on the ground that to admit them permitted or compelled the husband to testify against the wife.
    [Ed. Note. — For other eases, see Witnesses, Cent. Dig. §§ 124, 126-136, 165, 415, 417, 419, 424; Dec. Dig. § 52.]
    2. DISORDERLY HOUSE (§ 16) — EVIDENCE — Acts of Person Participating in Offense —“Principal.”
    On a trial for keeping a house where prostitutes resorted and resided for the purpose of plying their vocation, and where men and women met for sexual intercourse, evidence that ac-cusd’s husband took men and women there to engage in unlawful cohabitation was admissible, as it tended to show that accused was keeping a bawdyhouse, especially as all parties aiding and abetting the commission of a misdemeanor are “principals,” and such acts rendered him liable as a principal offender.
    [Ed. Note. — For other cases, see Disorderly House, Cent. Dig. §§ 21-25; Dec. Dig. § 16.

    For other definitions, see Words and Phrases, First and Second Series, Principal.]
    3. Criminal Law (§ 854) — Custody and Conduct of Jury — Separation.
    Under Code Cr. Proe. 1911, art. 746, providing that in case of misdemeanor the court may, at its discretion, permit the jury to separate before the verdict, after giving them proper instructions in regard to their conduct while so separated, on a trial for keeping a disorderly bouse, it was not error to permit the jury to separate after the completion of the case, but before the return of a verdict, where the jury was properly instructed and were guilty of no improper conduct. ’
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2039-2047; Dec. Dig. § S54.] •
    4. Disorderly House (§ 16) — Evidence — Admissibility.
    On a trial for keeping a bawdyhouse, the testimony of a witness that while she was rooming with accused men would come there and she would go to other places and have sexual intercourse with them was admissible, as it tended to show that accused kept a house where prostitutes resided; especially where the witness further testified that she had sexual intercourse with men many times in the room rented from accused.
    [Ed. Note. — Eor other cases, see Disorderly House, Cent. Dig. §§ 21-26; Dec. Dig. § 16.]
    6. Disorderly House (§ 16) — Evidence — Admissibility.
    On a trial for keeping a bawdyhouse, evidence that the witness had sexual intercourse at other places with one of accused’s roomers for whom he would call at accused’s house was admissible; especially where there was evidence tending to show that accused knew the roomer was a prostitute.
    [Ed. Note. — Eor other cases, see Disorderly House, Cent. Dig. §§ 21-25; Dec. Dig. § 16.]
    6. Disorderly House (§ 16) — Evidence — Admissibility.
    On a trial for keeping a bawdyhouse, evidence that a witness for the state had tried to get R., an inmate of accused’s house, to engage rooms with other persons for the purpose of entrapping them was properly excluded, where it was not contended that he brought her to accused’s house or sought to get her to bring other women there, as this might tend to show animosity towards R., but not towards accused.
    [Ed. Note. — For other cases, see Disorderly House, Cent. Dig. §§ 21-25; Dee. Dig. § 16.]
    7. Criminal Law (§ 1171) — Argument oe Counsel — Improper Remarks.
    Where on a trial for keeping a bawdyhouse an inmate of accused’s house laughed at a remark of accused’s counsel in his argument, the prosecuting officer’s incidental reference to the fact that she laughed at such remark was not sufficient cause for a reversal.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 3126, 3127; Dec. Dig. § 1171.]
    Appeal from Harris County Court at Law; C. C. Wren, Judge.
    Mrs. Mary Farris was convicted of keeping a disorderly house, and she appeals.
    Affirmed.
    Heidingsfelders, of Houston, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

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

   HARPER, J.

Appellant was prosecuted and convicted of keeping a disorderly or bawdyhouse, from which judgment she prosecutes this appeal.

Bessie Craft, Francis Gay, and other .witnesses for the state were permitted to testify that appellant’s husband was in the automobile business, and that he would bring men and women to the house. Appellant objected to this testimony, alleging:

“That defendant was the wife of Mr. Farris, and that the husband could not testify directly or indirectly against the wife, and that it was an attempt to admit evidence of the acts, conduct, and doings of the husband, indirectly, which could not be proven directly, and further that acts, statements, and declarations of the husband could not be used against the wife, was hearsay, inadmissible for any purpose and highly prejudicial.”

Appellant was being prosecuted, for keeping a house where prostitutes resorted and resided for the purpose of plying their vocation, and a house where men and women met by mutual appointment for the purpose of sexual intercourse, and the fact that witnesses testify that appellant’s husband brought men and women there to engage in unlawful cohabitation would be admissible testimony. The husband, of course, could not be called to give such testimony, but any person who saw the husband engaged in such acts could so testify, and it would not be the husband giving testimony against the wife either directly or indirectly. Such facts were cogent circumstances tending to prove that appellant was, in fact, keeping a bawdyhouse, and the court did not err in admitting the testimony. If the husband was thus actively engaged in aiding his wife in violation of the law, his acts and conduct in so doing could be proven, not by him, but by competent witnesses. This testimony went to show that the husband would get men and women in his automobile and carry them to the home kept by his wife, where they would enter the house and engage in the unlawful acts. Where the husband aids the wife in the commission of a crime, such fact can be shown. In a misdemeanor, all persons aiding and abetting the commission of an offense are principals, and may be prosecuted as such, and the acts testified as being committed by him, if true, would render him liable as a principal offender, and under such a state of facts his acts and conduct were admissible. Branch’s Grim. Law, § 681; Cook v. State, 22 Tex. App. 525, 3 S. W. 749; Cox v. State, 8 Tex. App. 390, 34 Am. Rep. 746.

The second bill of exceptions complains of the action of the court in permitting the jury to separate after they had received the charge from the court. The facts are: The case was completed late in the afternoon, and the jurymen, not arriving at a verdict, were permitted to go to their respective places of abode for the night. This offense is a misdemeanor, and article 746 of the Code of Criminal Procedure provides that in a case of misdemeanor the court may, at its discretion, permit the jury to separate before verdict, after giving them proper instructions. It is not contended that the court did not properly instruct the jury, or that the jury was guilty of any improper conduct, the contention being that the error consisted in permitting the jury to separate; consequently there is nothing to show that the court abused his discretion in permitting the jury to separate, and, in the absence of any attempt to show improper conduct on the part of the jury, the bill presents no error.

In bill No. 3 it is complained that the court erred in permitting the witness Bessie Craft to testify that Mr. Parris requested her to stay at the house of his wife, and told her she could make lots of money if she would stay there. Of course if the appellant was not present when this conversation took place, and it was not in furtherance of the commission of an offense in which both are principal offenders, there might be grounds of objection, but no such contention is made; the objection being that it would be the husband giving testimony against his wife, and compelling him to do so. Such objection is not sound. In Cook v. State, 22 Tex. App. 525, 3 S. W. 749, it is held that, if husband and wife act together in the commission of an offense, acts and declarations of either which are res gestse of the transaction are admissible. And in Cole v. State, 51 Tex. Cr. R. 91, 101 S. W. 218, and Richards v. State, 55 Tex. Cr. R. 280, 116 S. W. 587, this court has held that even communications between husband and wife in the presence of another person may be proven by such person, and, if that is true, certainly it would be admissible to show the remarks of either to a third person which tended to show that they were engaged in an unlawful undertaking. The same may be said as to the testimony of Praneis Gay, who testified to acts of Mr. Parris which would tend to show that he was aiding and assisting his wife in running the disorderly house.

As to the testimony of Mrs. Hayden that while she was rooming at the house of appellant men would come there and she would go to other places and have sexual intercourse with them, it certainly would be admissible as tending to show that appellant kept a house where prostitutes resided, and especially is this true in the light of Mrs. Hayden’s further testimony that she had sexual intercourse with men many times in the room rented by her from appellant. She testified:

“During the time I was rooming at the house of Mi’s. Parris I had intercourse with Mr. Gay. I also had intercourse with other men while living at Mrs. Parris’ house.” •

In another bill it is shown that a Mr. Bourgeois first testified that he had improper relations with one Inez Wood, who was a roomer at Mrs. Parris’ house' — at defendant’s house. Later he testified that the intercourse did not take place at Mrs. Parris’ house, but he would call and get Inez Wood and take her to other places for that purpose. Defendant moved to exclude the testimony of the witness. The court did not err in refusing to do so, because it tended to show that one of her roomers, Inez Wood, was a prostitute, and the further testimony of this witness would tend .to show that appellant was aware of that fact.

Appellant complains that the court, in refusing to permit her to ask Henry Wood, a witness for the state, if he had not tried to get Madge Robinspn, an inmate of her house, to go around with him to other iilaces and engage rooms for the purpose of entrapping such persons, committed error. As it is not contended that Wood had brought Madge Robinson or sought to get her to bring any other woman to her house, it would be immateral whether or not he had sought to get her to assist him in catching other people at different houses for a similar offense; for, if he had done so, and Madge Robinson refused, it might tend to show animosity towards Madge Robinson, but not towards this appellant. Such fact was foreign to any issue in this case.

The only other bill in the record recites that while appellant’s counsel was speaking he used the following language: “Gentlemen of the jury, I don’t blame Gay for slipping in Mrs. Hayden’s room and stealing a piece,” when Madge Robinson laughed aloud. He then complains that, when the prosecuting officer was replying to his speech, he said: “Look at Madge Robinson; didn’t you see her laugh,” when defendant’s counsel made the remark above quoted. Appellant complains that this remark was very harmful to her. As appellant’s counsel had made the remark and elicited the laugh from Madge Robinson, the incidental reference to such proceeding by state’s counsel would not be cause for reversal of the case.

These are all the bills of exception in the record, and, in our opinion, none of them present reversible error, and the judgment is affirmed.


text:
    DE LEROSA v. STATE.
    (No. 3220.)
    (Court of Criminal Appeals of Texas.
    Oct. 14, 1914.
    Rehearing Denied Nov. 11, 1914.)
    1. Criminal Law (§ 684) — Trial—Introduction on Testimony.
    Under Code Or. Proc.-1911, art. 718, providing that the court shall allow testimony to be introduced at any time before the argument is concluded if necessary to a due administration of justice, the state may, on rebuttal, introduce testimony which it should have introduced in chief.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1615, 1618; Dec. Dig. § 684.]
    2. Criminal Law (§ 684) — Trial—Introduction off Testimony — Abuse oe Discretion.
    In a prosecution for selling liquor in prohibition territory, where accused denied the sale, it was not an abuse of discretion for the court to allow one of the persons claimed to have been present to testify in rebuttal that he saw accused sell and deliver the liquor.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1615, 1618; Dec. Dig. § 684.]
    S. Witnesses (§ 837) — Corbobobation.
    Where accused, charged with the sale of intoxicants in prohibition territory, who toot the stand in his own behalf, offered witnesses, who testified that his reputation as to truth and veracity and as a law-abiding citizen was good, and such witnesses were not cross-examined, it is proper to reject questions as to accused’s general reputation of being a saloon loafer, and as to whether the witnesses had ever known of his peddling whisky; such matters not being germane to the issue.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1113, 1129-1132,1140-1142,1146-1148; Dec. Dig. § 337.]
    4. Criminal Law (§ 938) — New Trial — Newly Discovered Evidence.
    Where accused claimed that he was visiting at the time he was charged with making an unlawful sale of intoxicants, he is not, upon conviction, entitled to a new trial on the ground of newly discovered testimony, that the new witness rode with him on the day of the sale from one place to another; for such fact must have been within accused’s knowledge.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2306-2315, 2317; Dec. Dig. § 938.]
    5. Criminal Law (§ 941) — New Trial — Newly Discovered Evidence.
    A new trial will not be granted on the ground of newly discovered evidence which is only cumulative.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2328-2330; Dec. Dig. .§ 941.]
    6. Criminal Law (§ 1137) — Appeal—Invited Error.
    Where accused himself requested a charge on alibi, he cannot complain that the court charged on that question; the error, if any, having been invited.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3007-3010; Dee. Dig. § 1137.]
    7. Criminal Law (§ 815) — Instructions— Issues.
    In a prosecution for an unlawful sale of intoxicants, where the state’s witnesses fixed the day of the sale as the first or second Saturday in March, it is proper for the court to refuse a special charge narrowing the issue down to whether the sale was made an Saturday, March 7th.
    [Ed. Nota — For other cases, see Criminal Law, Cent. Dig. §§ 1922, 1986; Dec. Dig. § 815.]
    Appeal from District Court, Caldwell County ; F. S. Roberts, Judge.
    Louis De Lerosa was convicted of selling intoxicating liquors in prohibition territory, and he appeals.
    Affirmed.
    O. Ellis, Jr., and S. R, Graves, both of Lockhart, for appellant. C. E. Lane, Asst Atty. Gen., for the State.

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

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

   HARPER, J.

Appellant was convicted of selling intoxicating liquors in prohibition territory, and his punishment assessed at three years’ confinement in the state penitentiary.

Feliz Foster testified that he, in company with Abraham Alva and Jose Moreno, went to the house of one Susie Sombrano, and while there he purchased from appellant two quarts of whisky, paying him $4 therefor; that the whisky was purchased for himself, Alva, Moreno, and Miguel Gonzales. Abraham Alva also testified to the purchase. The defendant testified and denied making any sale to Foster.

After the defendant had closed, the state then introduced Moreno as a witness in rebuttal, to which defendant objected. Under the common-law rule of evidence the defendant’s objections should have been sustained, and it would have been error not to have done so, but our statute has changed that rule, and provided (article 718) that the court shall allow testimony to be introduced at any time before the argument is concluded if it appears that it is necessary to a due administration of justice. Foster testified he had purchased whisky from appellant. Appellant denied selling the whisky. It was no abuse of discretion for the court- to allow Moreno to testify that he saw appellant sell and deliver the whisky to Foster.

Appellant introduced Joe Probst, Zack H. Hanna, and J. R. Bradshaw, and proved by them that the reputation of appellant for truth and veracity was good, and that his reputation for being a peaceable, quiet law-abiding citizen was good. These witnesses were not cross-examined as to these matters, and no testimony was offered by the state on those issues; yet appellant insists that he should have been permitted to ask these witnesses as to the general reputation of appellant as to loitering about saloons, as to his habits as a drinking man, and had the witnesses ever known of appellant peddling whisky. The fact that those witnesses had never seen appellant sell whisky would be no evidence on the issue of whether or not he sold Foster whisky. The state narrowed its proof down to that identical sale, and the fact that he had never sold whisky to the three gentlemen named would not tend to show that he had not sold the whisky with which he was charged with selling in this case. The other questions as to whether or not he had the reputation of being a drinking man or a loiterer about the saloons were germane to no issue in the case, and the court permitted appellant to go as far on the issue of appellant’s reputation as was permissible on the issues made in the case.

Appellant asked a new trial on the ground of alleged newly discovered testimony. This trial was had March 31st. The state’s witnesses fixed the date of purchase of the whisky as three or four weeks before the date of the trial, and said it was on a Saturday, shortly after noon. Appellant then testified he was not at Lockhart on Saturday, March 7th, but on that date was at the home of his father, and went from there to the home of Jesus Ramerez, where he spent Sunday, the 8th, that being the birthday of one of the children of Ram-erez. He introduced several witnesses to prove those facts; and yet in the motion for new trial he contends that the testimony of Erculano Barboza, who, he says, will testify that he rode with appellant from his (appellant’s) father’s to the home of Ram-erez on that occasion and spent the 8th with appellant. If Barboza would so testify, appellant knew that fact before the trial and during the trial as well as Barboza did. So in no sense of the word can it be said to be newly discovered testimony. If he should say he did not know the materiality of the testimony before the trial, it certainly became apparent during the trial, and when he discovered that it was material, he should then have asked the court for process for the witness, and requested that the court give him time to secure his attendance. 1-Ie could not sit idly by, continue the trial in the hope of an acquittal, and then, in case he was convicted, hope to get a new trial on account of testimony that he could have secured on this trial by the exercise of the least diligence. Again, such testimony would be but cumulative of the testimony of Rame-rez and others. It has always been held by this court that, where the motion shows on its face that the defendant could not have been ignorant of the existence of the alleged newly discovered evidence, the new trial should be denied. Price v. State, 36 Tex. Cr. R. 403, 37 S. W. 743; Blount v. State, 34 Tex. Cr. R. 640, 31 S. W. 652. Again it has been held that a new trial will not be granted for testimony which is merely cumulative. Riojas v. State, 36 Tex. Cr. R. 182, 36 S. W. 268; Turner v. State, 37 Tex. Cr. R. 451, 36 S. W. 87. Tested by either of these rules, the court did not err in refusing a new trial on account of the alleged newly discovered testimony.

The only other bill in the record is one in which appellant complains that the court erred in charging on what is termed an alibi. Had the court’s charge been so drawn as to lead the jury to believe that the court was of the opinion that a sale of whisky had been made, appellant might have ground to complain, but the court, in wording his charge, so framed it as to leave it to the jury to determine whether or not an offense had been committed, he instructing them:

“That if the offense was committed as alleged, then if defendant claims at the time of the commission thereof he was at another and different place,” etc.

In addition to this appellant asked a special charge, a portion of which reads:

The defendant denies making the sale, and testifies that at the time of the said sale to which the state’s witness Feliz Foster testifies he, the defendant, was not in the said city of Lockhart, but was on said date in Bastrop county, Tex., and therefore could not have made said sale if any was made. You are therefore instructed that if you believe from the evidence in this case that the defendant was not in the city of Lockhart, Caldwell county, Tex., at the time said alleged sale was made, then you will find the defendant not guilty, or, if you have a reasonable doubt of the defendant being in said city of Lockhart at the time the sale was made, if any was made, you will acquit the defendant.”

This was requesting the court to submit the issue of an alibi, and, as he requested the submission of the issue, it would not be reversible error for the court to do so; for invited error is never ground for reversal of a case. Cornwell v. State, 61 Tex. Cr. R. 122, 134 S. W. 221, Ann. Cas. 1913B, 71, and cases there cited. The charge on alibi being in language frequently approved by this court, and appellant having, by a specially requested charge, asked the submis-' sion of that issue, he cannot now be heard to complain.

Other portions of his special charge sought to narrow the issue as to whether a sale was made on Saturday, March 7th. This was too restrictive, and the court did not err in refusing to give it. No witness sought to fix that as the specific date of sale, but the state’s witnesses fixed the date as Saturday, two or three weeks before the trial, and to meet this issue appellant sought to show he was not in Lockhart on either the first or second Saturday in March, and, as the state’s evidence would not make it clear whether it was the first or second Saturday in March, it would have been improper to limit the consideration of the jury to either one of those dates. alone.

The judgment is affirmed.


text:
    CONATSER v. STATE.
    (No. 3281.)
    (Court of Criminal Appeals of Texas.
    Oct. 28, 1914.)
    1. Criminal Law (§ 917) — New Trial — Grounds.
    It was not error to overrule a motion for a new trial because of the absence of witnesses on whose account a continuance was asked, where, from the evidence on such motion and all the facts and testimony in the case, it was not probable that they would have testified as claimed by accused.
    [Ed. Note. — For other cases, see Criminal Law,, Cent. Dig. §§ 2161, 2162; Dec. Dig. §
    2. CRIMINAL Law (§ 1166%) — Appeal — Harmless Eeroe — Examination op Jurors.
    Where the district attorney asked the panel of jurors if they were biased in favor of or against accused, whereupon two of them answered that they were prejudiced, accused could not have been prejudiced by the court’s action in asking such jurors if they were prejudiced against accused, it appearing that the court did not understand the question asked by the district attorney, and that such jurors did not serve in the case.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 3114-3123; Dec. Dig. § 1166%-]
    3. CRiMiNAi Daw (§ 982)—Evidence—Evi-dence Admissible under Plea for Suspended Sentence.
    On a trial for violating the prohibition law in which accused filed a plea for a suspended sentence, it was not error to permit the state to ask one of accused’s witnesses whether the witness knew that accused was running an assignation house, especially where no objection was made to a question asked accused whether he was running such a house.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2500, 2501; Dec. Dig. § 982.]
    4. Criminal Law (§ 1090) —Appeal—Reservation op Grounds op Review—Bill op Exceptions.
    The admission of testimony cannot be reviewed on appeal, where the question is not raised or verified by a bill of exceptions.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    5. Criminal Law (§ 933)—Verdict—Fail-ure to Recommend Suspension op Sentence.
    The failure of the verdict to dispose of the question as to recommending a suspension of sentence, it being silent on the subject, was not error available on a motion for a new trial.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2283-2292; Dec. Dig. § 933]
    Appeal from District Court, Lamar County; Ben H. Denton, Judge.
    Y. M. Conatser was convicted of pursuing the business of selling intoxicating liquors in prohibition territory, and he appeals.
    Affirmed.
    ’ C. E. Lane, Asst. Atty. Gen., for the State.

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

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

   PRENDERGAST, P. J.

Appellant was convicted for pursuing the business or occupation of selling intoxicating liquors in prohibition territory, and his punishment assessed at the lowest prescribed by law. The evidence is amply sufficient to show and the jury were clearly justified in finding him guilty, in that it establishes that during the time alleged he pursued the business, made many sales of intoxicating liquor to various persons alleged, as well as others, and that prohibition was in force in said county at the time.

He made a motion for a continuance on account of the absence of several witnesses. The record shows . some of these appeared and testified on the trial. After his conviction, he made a motion for new trial because of the absence of two of these witnesses, and the overruling of his said motion. The state vigorously contested this. The record shows that, when acting on it, the judge heard evidence thereon. The record, in no way, shows what this evidence was. In approving the bill the court did so with this explanation:

“The defendant filed his application for continuance for Pete Adair, L. S. Lawler, and Kelso Hollingsworth. Pete Adair was brought in and testified. The application was for Kelso Hollingsworth, and an attachment was ordered for him, and the testimony showed that the man they wanted was the man who had the little girl at defendant’s house, under the treatment of Dr. Roberts of Paris, for eye trouble, and when the witness Holloway was brought into court under attachment, it developed that he was the same man who had the little girl at defendant’s house and his name was Holloway, and not Hollingsworth, and the court will see upon the examination of the facts that the witness would not testify as claimed by defendant. Lawler was one of the state’s witnesses; in fact was one of the parties to whom the sale of the whisky was made, as alleged in the indictment; the facts further showed that he left the state for California the next day after the sale of whisky was made, and nothing was done to secure his deposition, and if the witness had been present it is not probable, from all the other facts and testimonies in the case, that he would have testified as alleged by the defendant.”

The court committed no error on this point.

By another bill he complains that, when the jury panel was examined to make up the jury, the district attorney asked the panel if they were biased in favor or against appellant. Two of the jurors answered that they were. The court, not understanding the questions, asked each of said jurors individually if he was biased in favor of or t prejudiced against appellant Each answered that they were prejudiced against him. The court at once set aside both of these jurors, and neither sat on the jury. Appellant objected to the court asking these jurors individually the said question, because their answers were calculated and likely to prejudice the balance of the jury against him. The court, in allowing the bill, did so with this explanation:

“After the district attorney had asked the jurors the question, not understanding what the question was to Noah Blake, I then asked him if he said he was prejudiced against the defendant, and he replied that he was, and the court stood him aside and he did not servo; and the juror Conway also answered the question of the district attorney, and I asked him if he was prejudiced against the defendant, and he said he was. I stood him aside also; neither of the jurors above named served on the jury in this case.”

The action of the court could not and did not have the effect as claimed by appellant in his objection.

Appellant filed a plea for suspended sentence in the event of his conviction. The court submitted the question properly to the jury for a finding. Appellant has a very short and meager bill to this effect: That the district attorney in crossing appellant’s witness Haddock, asked Haddock if he did not know that appellant was running an assignation house. The bill does not disclose whether any answer was made to the question or not. He objected to the question because appellant was not charged with running such house, and the evidence was immaterial and would not tend to prove any issue in the case, and was calculated to prejudice the jury against him. The court, in approving the bill, did so with the explanation that the appellant asked for a suspended sentence, and that issue was submitted to the jury. If we could go to the record it would show that appellant himself testified, and the state asked him if he was not running such house, and he denied that he was. No bill was taken to his own testimony or the asking of the questions to him. As he had properly pleaded for a suspended sentence, clearly the state had the right to go into all such matters to enable the jury to determine whether or not they would suspend his sentence. Williamson v. State, 167 S. W. 360.

Appellant, in his motion for new trial, complains of the admission of the testimony of various witnesses in several particulars, but none of these questions are raised or verified by bill of exceptions. Therefore, under a long line of uniform decisions, such matters cannot be reviewed by this court on appeal.

In his motion for new trial he complains that the verdict of the jury did not dispose of the question as to whether it would recommend a suspension of his sentence,. The verdict said nothing on the subject. It merely found him guilty and assessed his punishment. No complaint was made of this otherwise than in his motion for new trial. This presented no error, as many times held by this court. Roberts v. State, 158 S. W. 1003; Potter v. State, 159 S. W. 846; Bowen v. State, 162 S. W. 1146; King v. State, 162 S. W. 890; Campbell v. State, 164 S. W. 850; Cook v. State, 165 S. W. 573; Johnson v. State, 170 S. W. 144, decided October 14, 1914.

There is nothing else raised which can be considered.

The judgment is affirmed.


text:
    PERRETT v. STATE.
    (No. 3286.)
    (Court of Criminal Appeals of Texas.
    Oct. 28, 1914.)
    1. Criminal Law (§ 1192) — Appeal—Law op Case.
    Where a confession, held inadmissible on a former appeal, was, upon a subsequent trial for the same offense, again admitted in evidence, the admission is error; the former judgment having settled the law as to the admissibility of the confession.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3231-3240, 3243; Dec. Dig. § 1192.*] ,
    2. Witnesses (§ 321) — Contbadiction—Sur-prise.
    Where on the first trial the female denied that accused raped her, the state cannot, upon 1 calling her on the second trial, introduce in evidence a written statement, in which she charged accused with the offense, for the state cannot put a witness on the stand knowing the testimony will be adverse in order to get in another statement which would be beneficial, and knowing the former testimony of the witness could not claim surprise.
    [Ed. Note. — Eor other cases, see Witnesses, Cent.^ Dig. §§ 1094, 1099, 1100'; Dec. Dig. ]
    Appeal from District Court, Tarrant County; Jas. W. Swayne, Judge.
    G-. W. Perrett was convicted of rape, and he appeals.
    Reversed and remanded.
    Poulter & Johnson, of Ft. Worth, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, J.

Appellant was convicted of rape. This is the second appeal; the first will be found reported in 162 S. W. 882.

The case was reversed before on account of the introduction of the confession of appellant. This confession was again admitted in evidence, and the matter is presented by proper bill of exceptions in this record. Here the question is presented practically as on the former appeal. For this reason the judgment will have to be reversed.

There is another question in the record which is reversible. The alleged injured girl was the daughter of appellant, and was placed on the stand on the previous trial as she was in this trial by the state and denied all acts of intercourse with her father. She testified the same, it seems, upon the former trial as we understand this record. The state then introduced her written statement, in which she, in substance, admitted the illicit intercourse. This was made prior to the finding of the indictment. She had testified nothing injurious to the state further than a simple denial of the acts of intercourse. Of this the state was fully aware when she was placed upon the stand as a witness; therefore surprise could not be urged. The state will not be permitted to put a witness on the stand, knowing that the testimony would be adverse, in order to get in another statement which would be beneficial to the state. If the state had expected her to swear to the intercourse, and she had denied it, then, perhaps, on the theory of surprise the prosecution might have introduced; this testimony by way of impeachment, or if the appellant had introduced her and had her testify, then she could be so impeached. There are two bills presenting this matter; one as to the written statement, and the other verbal testimony. This was error. The state could not get a statement of the girl incriminating her father before the jury in this manner.

The judgment is reversed, and the cause is remanded.


text:
    REECE v. STATE.
    (No. 3274.)
    (Court of Criminal Appeals of Texas.
    Oct. 28, 1914.)
    1. Cbiminal Law (§ 1122) — Appeal—Bill of Exceptions.
    Where the record did not show that defendant’s special charge was requested / before the court gave his charge to the jury, and no hill of exceptions to its refusal was taken, the question could not be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2940-2945; Dec. Dig. § 1122.]
    2. Cbiminal Law (§ 829) — Requested In-steuction — Given Insteuction. .
    Where a requested special charge was fully covered by the main charge, it should not have been given.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.].
    3. Cbiminal Law (§ 1090) — Appeal—Bill of Exceptions — Necessity.
    Objections on motion for new trial as to the admission of evidence cannot be considered, where not verified by bill of exceptions.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    4. Labceny (§ 12) —Elements—“Taking.”
    In a prosecution for theft, proof that defendant, or some, one, had taken actual manual possession of the cotton and moved it some distance to the scales, that defendant informed the manager of the yard holding the cotton for the owner that he had cotton to be weighed and assisted him in weighing and sampling it, and received tickets issued by such owner, which he sold for cash, showed a “taking,” within Pen. Code 1911, art. 1331, declaring that property need not be removed from the place of taking, and that it is sufficient that it has been in the possession of the thief, though it may not be moved out of the presence of the person deprived of it
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 22-29; Dee. Dig. § 12.

    For other definitions, see Words and Phrases, First and Second Series, Taking.]
    Appeal from District Court, Brown County; John W. Goodwin, Judge.
    Jim Reece was convicted of theft, and he appeals.
    Affirmed.
    Arch Grinnan, of Brownwood, for appellant. C. E. Lane, Asst Atty. Gen., for the State.

      For other cases see same topic and section NUMBER in Dec. Die. & Am. Din. Kev-No. Series & Reo’r Indexes

   PRENDERGAST, P. J.

Appellant was convicted of the theft of two bales of cotton. The court gave a full, apt, and complete charge, submitting every issue raised. No objection whatever was made to the charge.

Appellant requested one special charge which was refused. The record does not show that this was requested before the court gave his charge to the jury, nor was any bill of exceptions taken at any time to the refusal of this charge; hence the question is not raised in such a way as authorizes this court to pass upon it. Even if we could, we think the special charge was fully covered by the main charge, and it should not have been given.

Appellant has some complaints in his motion for new trial of the introduction of testimony. None of these questions are verified by any bill; hence they cannot be considered.

The only other question he raises is: He claims the evidence does not show that the cotton was taken from the possession of Grant Thomas, to whom the indictment charges it belonged. The uncontradicted evidence on that point was substantially this: Thomas was in charge of a cotton yard in Brownwood. He had the care, custody, and control of the yard and all cotton that was received therein. About a week before appellant is charged to have committed this offense Thomas had received, weighed, and placed in position in the yard said two bales of cotton. Neither bale had been sampled. Between 7 and 8 o’clock on the night of October 4, 1913, after Thomas had left his cotton yard, appellant went to the residence where Thomas stayed and told him he had two bales of cotton he wanted weighed. Thomas told him it was dark then and to wait until next morning, but offered to go down with him and help him throw it off the wagon. He replied that it was already unloaded and his cousin had gone to the wagon yard with the team. Early the next morning Thomas met appellant and they together went down to the cotton yard for Thomas to receive from appellant, weigh, and sample the two bales. Upon reaching the yard, he found the two bales of cotton at his scales, and, with the assistance of appellant, then weighed them. He sampled one bale and appellant the other. The night before, appellant told him that the cotton was his cousin’s cotton, and when he weighed it, and when he went to issue the tickets, he asked to whom he should issue them, and appellant told him to issue them to him, which he did. Appellant then took the tickets and the samples up in the town and sold the two bales to a merchant for about $150 cash, and delivered the tickets to him at the time as representing the cotton and the delivery thereof to the merchant. A day or two later the owner of one of the bales who had first delivered it to Thomas in the yard and to whom he had issued a ticket therefor, having sold the cotton, applied to Thomas, and at first himself tried to locate it, which he could not do. Thomas then went to the cotton yard and found that the two bales which appellant had turned over to him were the two bales that he had received for the owners some days previous thereto. He thqroughly identified the two bales as the cotton previously delivered to him and placed by him at the time as stated. Thomas said no wagon had gone through the cotton yard the day before up to the time he left there. The next morning when he went there with appellant he found that since he had left there the evening before wagon tracks bad been made right at bis scales through the mud; it being quite muddy. Thomas could not say positively whether the cotton had been actually taken out of the yard from the time it was first received by him from the real owners to the time he weighed it for appellant or not.

Our statute (article 1331, P. O.) is:

“To constitute ‘taking,’ it is not necessary that the property be removed any distance from the place of taking; it is sufficient that it has been in the possession of the thief, though it may not be moved out of the presence of the person deprived of it; nor‘is it necessary that any definite length of time shall elapse between the taking and the discovery thereof; if but a moment elapse, the offense is complete.”

This evidence clearly shows that at least some one had taken actual manual possession of this cotton and moved it from where Thomas had first placed it, some distance, to the scales when appellant had it weighed, and that appellant, at the time it was weighed, by what was done, as shown above, was in possession of it, and thereby he took it out of the possession of Thomas, and then, after having it weighed and sampled, in receiving the tickets therefor, himself delivered the possession thereof, for himself, back to Thomas. We think the facts clearly show that it was a taking of this cotton out of Thomas’ possession under his first holding thereof for the true owners.

We have not recited, because unnecessary, the other evidence tending to show, and clearly sufficiently so, that appellant was the person who took said property out of Thomas’ possession. The evidence is even sufficient to show that appellant actually moved the cotton entirely from the cotton yard, and then returned it the night before he had it weighed the next morning. The court gave a correct charge on circumstantial evidence.

The judgment is therefore affirmed.